The petitioner, as prosecuting attorney of the Fifth Judicial District, seeks a writ of prohibition to terminate proceedings by a special grand jury in Faulkner County, impaneled by direction of the respondent as circuit judge of the district. The petitioner alleges that the order impaneling the special grand jury exceeds the authority of the circuit court and is therefore void. Three questions are raised by the pleadings in this court and discussed in the parties’ briefs.
First, does the petitioner, as prosecuting attorney, have standing to question the method by which the grand jury was selected? We have no doubt that he has. It is his statutory duty to “commence and prosecute” civil and criminal actions in which the State or any county in his circuit may be concerned. Ark. Stat. Ann. § 24-101 (Repl. 1962). If the grand jury proceedings are void it is clearly appropriate for the prosecuting attorney to commence and prosecute an action 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.
Second, is 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.
Third, was 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. A regular grand jury selected according to law was in session at the May, 1975, term of the Faulkner Circuit Court. On July 2 the circuit judge discharged that grand jury. On July 15 the judge ordered the county sheriff to select 25 grand jurors from the county. That is the special grand jury whose legality is at issue.
The respondent’s action is defended on the basis of our holding in a number of cases, especially the Rowland case: Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370 (1948), cert. den. 336 U.S. 918 (1949); Brewer v. State, 137 Ark. 243, 208 S.W. 290 (1918); Wilburn v. State, 21 Ark. 198 (1860); and Straughan v. State, 16 Ark. 37 (1855). In some of those cases we recognized that in certain circumstances the circuit court could cause a grand jury to be selected not according to the statutes but “in the exercise of its inherent constitutional right.” Rowland v. State, supra. Neither the origin nor the extent of that inherent constitutional power is made clear by the decisions. Moreover, the court recognizes that even that inherent authority is subject to legislative control. For instance, in Rowland we cited Wilburn as authority for the existence of the inherent constitutional right, but in Wilburn the court took pains to say: “Whatever practical inconvenience may result from this construction, it must be remembered that the whole subject is within the control of the legislature, and that we have no authority to sanction a departure from what would seem to be an imperative provision of the statute.”
Even though the General Assembly apparently tolerated the courts ’ exercise of the asserted inherent power, the basic decisions were rendered in 1855 and 1860. That was shortly before the adoption of the Fourteenth Amendment and the better part of a century before the Supreme Court began to interpret that Amendment as severely limiting the freedom of the States in the selection and composition of grand juries and petit juries.
However long the legislative silence with regard to jury selection may have continued in Arkansas, it certainly ended in 1969, when Act 568 made the use of the jury wheel mandatory in the selection of grand and petit jurors. Ark. Stat. Ann. §§ 39-101 to -108 and 39-201 to -220 (Supp. 1973). That statute was obviously intended by the General Assembly to put an end to the possible constitutional infirmities in the earlier systems of jury selection. That the jury-wheel method of selection is imperative is made plain by Section 26 of Act 568: “No person shall be summoned to serve as a grand or petit juror who has not been selected under the provisions of this Act, unless this requirement is waived by the parties.” § 39-218. We cannot reasonably interpret the words “No person” to mean 25 persons, as the respondent’s argument would have us do.
We are not overlooking counsel’s reliance upon Ark. Stat. Ann. § 43-934 (Repl. 1964), which provides that when a grand jury is not in session the circuit court in its discretion may, by an order entered of record, impanel a special grand jury. That statute, originally part of the Revised Statutes of 1838, was amended by Initiated Act 3 of 1936. We do not construe it to exempt the courts from all legislative control in the matter of selecting special grand juries. The selection must still be made according to the governing statutes. Consequently the jury-wheel law was effective to fill the gap left by Section 43-934, even though the jury-wheel act did not receive the two-thirds vote that is required to amend an initiated act. There was no amendment, simply an implementation.
It follows from what we have said that the circuit court was without authority to impanel a special grand jury without complying with the safeguards and procedures contained in the 1969 act requiring the use of the jury wheel in the selection of grand juries and petit juries.
The writ of prohibition is granted.
Jones and Byrd, JJ., concur. Fogleman, J., dissents.