concurring. I concur with the majority opinion in this case but I desire to express my additional reasons for granting the writ.
The Criminal Code, Ark. Stat. Ann. § 43-901 (Repl. 1964), provides: “The selecting, summoning, and impaneling of a grand jury shall be as prescribed by law.” When Rowland v. State, 213 Ark. 780, 223 S.W. 2d 370, relied on by the respondent, was decided in 1948, Ark. Stat. Ann. § 39-201 (Repl. 1962) provided: “The circuit courts, at their several terms, shall select three (3) jury commissioners. . .” This section then prescribed the qualifications and oath to be administered to the commissioners. The duties of the commissioners in the selection of grand jurors were then prescribed and set forth in § 39-206. Section 39-213 then provided as follows:
“The grand jury shall be selected from those designated as grand jurors, but if any should be absent, incompetent to serve, or excused, the deficit shall be made up by taking a sufficient number of competent alternates present, in the order in which their names appear upon the list. If there shall not be a sufficient number of competent grand jurors and alternates present and not excused to form the grand jury, the court may compel the attendance of absentees, or order bystanders to be summoned to complete the jury.”
Section 39-222 then provided:
“If, for any cause, the jury commissioners shall not be appointed, or shall fail to select a grand or petit jury, as provided in this chapter, or the panel selected shall be set aside, or the jury lists returned in court shall be lost or destroyed, the court shall order the sheriff to summon a grand or petit jury of the proper number, who shall attend and perform the duties thereof, respectively, as if they had been regularly selected.”
Thus, it is seen that circuit judges and sheriffs had rather unlimited authority and discretion in the selection of grand jurors when Rowland v. State, supra, was decided, and it was apparently under this last section (§ 39-222) that the respondent circuit judge acted in the case at bar. Whatever may have been the authority and discretion in the impaneling of grand juries in 1948, that authority was limited to the procedure as prescribed by law in Act 568 of 1969. I do not question the authority of the Legislature to limit or prescribe the method and procedure of selecting grand juries.
Section 9 of Act 568 of 1969 provides for the appointment, qualifications and oath to be administered to not less than three or more than 12 jury commissioners, and Section 11 of the Act provides as follows:
“If any Commissioner shall become disqualified, die, or be excused, the Judge may, in his discretion, appoint a successor commissioner.”
Section 26 of the Act provides as follows:
“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.”
Section 25 of the Act provides for the drawing of grand jurors “from the wheel or box from which petit jurors are drawn,” and provides that “the Circuit Judge may direct the Jury Commissioners to provide the minimum number of names for a separate grand jury wheel or box. . .”
Section 20 of the Act provides as follows:
“If at any time it appears that a sufficient number of qualified jurors are not available to try scheduled cases, additional names may be drawn and recorded in the Jury Book in open court. These jurors shall be summoned as provided for in Section 18. The Circuit Judge may, at any time, in the exercise of his discretion direct the Jury Commission who selected the original names placed in the wheel or box or new Commissioners designated by him to meet and submit the names and last known addresses of additional registered voters whom the Commissioners believe to be qualified jurors. These names and addresses shall be placed by the commissioners within the wheel or box when it is next unlocked in open court and prior to any additional drawing of jurors, and a master list shall be presented to the court as provided in Section 13.”
Ark. Stat. Ann. §§ 39-206, 39-213 and 39-222, supra, were specifically repealed by Section 30 of Act 568, and Section 31 repealed all laws and parts of law in conflict with Act 568.
There is no question in my mind that the writ should be . granted.
Conley Byrd, Justice, concurring. The suggestion in Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370 (1948), that a circuit court has “inherent authority” not given to it by the constitution should be overruled. The Arkansas Constitution, Art. 4, § 1, provides:
“The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.”
The constitutional framers, therefore, built in a workable and desirable system of checks and balances to prevent or make harmless the abuse or usurpation of power by any one of the three departments of government. By observing how easily Mrs. Indira Gandhi of India flouted the election laws of her country through her control of both the legislative and executive branches of her country’s government, any student of government can understand the necessity for the zealous observance of the constitutional mandate on the separation of powers. Without such zealous observance of the separation of powers, any modern day Napoleon could arrogate unto himself the right to determine not only those who will be prosecuted but also those who will be elected. It should be remembered that Mrs. Gandhi caused a number of arrests to be made before the legislative branch exonerated her. Consequently, I respectfully suggest that any supposed inherent authority of any department of government to exercise the powers of another department should be disclaimed and denied at the first and every other opportunity.
For the reasons stated, I respectfully concur.