dissenting. I dissent because the majority fails to recognize the mandatory provisions of Ark. Code Ann. § 16-32-103 (1987). The majority seems to hold that so long as there is good faith on the part of the circuit judge and some similarity to the law, then it is alright to proceed in a “short-circuited manner.” I cannot go along with such loose interpretation of the clear and unambiguous law applicable to this case.
On May 15,1987, the court, at the request of the prosecuting attorney, selected 50 names to serve as a special grand jury. These names were randomly selected from the jury wheel which had been previously established on November 1, 1986. On June 8, 1987, the court entered an ex parte order allowing the random selection from the jury wheel of an additional 10 names to serve as prospective grand jurors.
On June 30,1987, the special grand jury returned one felony indictment and one misdemeanor indictment with four counts against Bill Abernathy. The petitioner moved to void the indictments on the grounds that the grand jury was not properly impaneled and the facts were not properly presented to the grand jury.
The Attorney General concedes that Act 1066 of 1985, Ark. Code. Ann. § 16-32-103 (1987), no longer provides for the use of jury commissioners but argues that the Act did not repeal section (c) of the provisions of Act 485 of 1975, Ark. Code Ann. § 16-32-201(c) (Ark. Stat. Ann. § 39-217.1). I do not agree with the Attorney General, or the majority opinion, on this point. The previous act required that when a grand jury was impaneled, it should consist of sixteen (16) qualified grand jurors plus a reasonable number of alternates. Act 1066 of 1985 requires, in this case, that 100 prospective grand jurors be selected during the month of November or December to serve during the following calendar year. These two provisions simply cannot be reconciled.
The grand jury is a powerful tool and should not be used in a haphazard manner. This court has traditionally taken the view that a circuit court is without jurisdiction in matters where an improperly impaneled grand jury has returned indictments. I also disagree with the majority’s distinction between the case at bar and Streett v. Roberts, 258 Ark. 839, 529 S.W.2d 343 (1975), where we stated:
If the grand jury proceedings are void it is clearly appropriate for the prosecuting attorney to commence and prosecute an action [by information] to avoid the waste of the taxpayers’ money necessarily involved in the futile trial of criminal cases that might be tainted with reversible error from the very outset.
[I]s the Writ of Prohibition the proper remedy? We have no doubt that it is. A basic purpose of the writ is to prevent a court from exercising a power not authorized by law, when there is no other adequate remedy. State, ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). If the circuit court in this instance is exercising its authority in a manner contrary to law, prohibition is the only remedy to provide prompt and effective relief in the public interest.
[W]as the circuit judge’s method of impaneling a special grand jury contrary to law? We have no doubt that it was. There is no dispute about the facts.
The present case is like Streett in that there is no dispute concerning the facts. Therefore, we need examine only the law to reach the right result. The controlling statute is Ark. Code Ann. § 16-32-103, which provides for the manner and selection of jurors as follows:
(a) During the month of November or December of each year, the prospective jurors for the following calendar year shall be selected from among the current list of registered voters of the applicable district or county in the following manner:
(1) The circuit judge, in the presence of the circuit clerk, shall select at random a number between one (1) and one hundred (100), inclusive, which shall be the starting number, and the circuit court shall then select the person whose name appears on the current voter registration list in that numerical position, counting sequentially from the first name on the list.
The statute designates the number of persons to be selected based upon the number of qualified registered voters in the district or county as reflected by the current voter list. The minimum number of prospective petit jurors required for Pope County is 1,000 and the minimum number of prospective grand jurors is 100. The court may select a greater number but has no authority to select fewer than the minimum number designated by statute.
In the present case the circuit court complied with neither the old nor the new law in selecting the grand jury. Act 1066 establishes the minimum number of both prospective petit and grand jurors which must be selected from the outstanding voter registration list. The Act does not specify whether the grand jury panel can be pulled from the petit jury wheel. Because the Pope County Circuit Court failed to select the minimum number of jurors for the grand jury panel, its action rendered the indictments void. The circuit court could have complied with the present law by placing eleven hundred (1100) names in a master jury wheel box and withdrawing one hundred (100) to serve as the grand jury; or the circuit court could have selected one hundred (100) names from the qualified voter registration list to establish a separate grand jury panel.
The failure of the court to establish a pool containing the minimum number of prospective jurors was fatal. The reduced number in the petit jury wheel automatically reduced the number of eligibles from which to draw the grand jury. The lack of the minimum number for the prospective grand jury list further reduced or limited the petitioner’s opportunity for a cross-section of his peers to serve on the jury. This procedure is contrary to expanding the random selection of grand and petit jury members as intended by Act 1066. If the number of prospective grand jurors can be reduced by fifty percent (50 %), as was done in this case, what would prevent the number from being reduced by 7 5 % or more?
The respondent argues that the old system was used in this case and that the grand jury was properly selected because a sufficient number of persons was drawn to provide for 16 qualified grand jurors plus a reasonable number of alternates. This could be said about any list of 16 or more qualified electors regardless of how the names were obtained. That is the evil of the old system which was changed by the legislature. As previously stated, section 16-32-201 (c) is in direct conflict with the new Act. It was therefore repealed by implication.
I agree with the respondent that statutes must be construed together and reconciled, if possible. Poe v. Housewright, 271 Ark. 771, 610 S.W.2d 577 (1981). Likewise repeals by implication are not favored. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980). In the present case the General Assembly repealed “All laws and parts of laws in conflict with this Act [Act 1066 of 1985]. . ..” Repeal by implication will not be adjudged unless the legislative intent is clear and necessary. In McDonald v. Wasson, 188 Ark. 782, 67 S.W.2d 722 (1934), this court, at page 788, stated:
The law as to implied repeal is stated in 59 C.J. 904, as follows: “An implied repeal is one which takes place when a new law contains provisions which are contrary to, but do not expressly repeal, those of a former law. A statute, or a provision thereof, may be repealed by implication. Whether it has been so repealed is a question of legislative intent. While such a repeal is not favored, nevertheless it must be recognized and accorded effect where it is apparent that it was intended. Conversely, there is no room for repeal by implication where no legislative intent to repeal is indicated or expressed, or an intent not to repeal is apparent or manifest.”
It is obvious that the legislature intended to eliminate the jury commissioner system when Act 1066 of 1985 was enacted. The law no longer provides for selecting prospective jurors by jury commissioners. These duties are now required to be performed by the circuit judge. The heart of the new statute is to provide for a random selection of both grand and petit juries. The number selected for each panel is determined by the number of persons currently registered to vote. These requirements are incompatible with the former method of selection of juries by commissioners. Therefore, I believe Act 1066 repealed any provision of the previous statutes providing for selection of juries in any manner inconsistent with the provisions of the Act. Because the indictments are illegal and void the trial court has no authority to proceed further based upon these indictments.
The concurring opinion of Justice Glaze obviously does not comprehend this dissent or the law. Therefore, I will not address his opinion.
I would grant the writ.