dissenting. In order that this case be put in proper focus, we must consider the question we are really deciding. The question is “Does any circuit judge in Arkansas have the power, in his discretion, to impanel a special grand jury when the regular grand jury has been discharged and the jury wheel has been quashed?” I fear that this case has not been so viewed. We are not concerned here with the validity or propriety of the order quashing the jury wheel. There is nothing in this record to establish any improper, ulterior or arbitrary motives on the part of the circuit judge in the actions taken by him. We cannot presume that he has acted improperly. Jones v. Capers, 231 Ark. 870, 333 S.W. 2d 242. It is also important that attention not be diverted to a question not before us, i.e., the question whether the special grand jury selected met constitutional requisites that it be a representative cross section of the community, selected without discrimination against any recognizable group entitled to equal protection.1
It is elementary that the writ of prohibition will not be granted unless the petitioner’s right to it has been clearly established and the tribunal against which it is sought is wholly without jurisdiction. Arkansas State Highway Commission v. Roberts, 248 Ark. 1005, 455 S.W. 2d 125. If there were evidence that the circuit judge had acted from grossly improper motives, a different question would have been presented, and we might have been able to say that such a flagrant abuse of discretion had been manifested as would justify issuance of the writ, although the writ is not to be used to control the trial court’s discretion or correct erroneous action. State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33.
With the focus thus directed, we may examine the basic issue. In my opinion, this case is governed by the decision in Rowland v. State, 213 Ark. 780, 213 S.W. 2d 370. There a grand jury selected by jury commissioners had been discharged. Thereafter, the circuit judge directed the sheriff to summon a special grand jury. The statute relied ujpon is Ark. Stat. Ann. § 43-934 (Repl. 1964), both there and here. That statute has remained intact. The source of its present language was Initiated Act No. 3 of 1936. We made certain specific and controlling statements in Rowland and no attempts to distinguish authorities cited in that opinion change these statements one whit. They are:
Appellant says that the Special Grand Jury should have been selected by the jury commissioners, rather than by the sheriff. But we have repeatedly held, as stated by Mr. Justice Hart in Brewer v. State, 137 Ark. 243, 208 S.W. 290, 291:
“Moreover, under our system, there are two modes by which a grand jury may be lawfully selected. One is where they are selected pursuant to the provisions of the statute; and the other is where the circuit court causes them to be selected in the exercise of its inherent constitutional right. Wilburn v. State, 21 Ark. 198, and Straughan v. State, 16 Ark. 37.”
To the same effect is Edmonds v. State, 34 Ark. 720. The omission, in section 33 of Initiated Act 3 of 1936, of the provision found in Section 3004, Crawford & Moses’ Digest - to the effect that the court might direct the sheriff to summon the Special Grand Jury - is immaterial, since we had said, in the quotation from Mr. Justice Hart above, that the court, in having a Grand Jury summoned by the sheriff, was acting under its “inherent constitutional right.” The existence or absence of a statute - authorizing the court to have the sheriff summon the jury - could make no difference when the circuit court was acting under its inherent constitutional right. So we hold that the circuit court had the power to empanel a Special Grand Jury just as it did in this case. (Emphasis mine.)
Neither legislative action nor silence was of any consequence when Rowland was decided. Since that time only the background and the personnel of the court have changed.
This brings us to an examination of the jury wheel law. Ark. Stat. Ann. § 39-101 et seq. (Supp. 1973). It requires the appointment of jury commissioners prior to November 2 in each year to select prospective jurors for the “following calendar year”. § 39-201, 205 (Supp. 1973). They are required to reconvene from day to day until they have selected the number of names required. § 39-205. Those names are placed in the jury wheel. § 39-206 (Supp. 1973). The circuit judge, in his discretion, may direct the commissioners who selected the original names to meet and submit additional names to be placed in the jury wheel. § 39-212 (Supp. 1973). This section does not apply when the jury wheel is quashed. The only provision prescribing action when the jury wheel is quashed is § 39-214 (Supp. 1973). When the circuit judge sustains a challenge to the wheel, he must appoint a jury commission of not less than three members to select a sufficient number of prospective jurors to constitute a panel of jurors for the trial of a cause. If that panel of jurors is exhausted prior to the formation of the particular trial jury, this new commission must be reconvened to place additional names on the list (not in the jury wheel), to be summoned as special jurors in such numbers as are deemed necessary to complete the jury for the trial of the cause.
This all leads me to certain inescapable conclusions. The first is that once the jury wheel has been filled, the jury commission originally appointed goes entirely out of existence and has no functions, duties or powers except as provided by § 39-212. The commissioners cannot be recalled to act as commissioners under § 39-214, because of the prohibitions of Ark. Stat. Ann. § 39-202 (Supp. 1973). There is no provision whatever for the selection of prospective grand jurors when the jury wheel has been quashed.
The only provisions relating to grand jurors are Ark. Stat. Ann. §§ 39-217 and 39-205 (Supp. 1973). Under these sections the circuit judge may either draw grand jurors from the jury wheel or require the original jury commission appointed to select the required number of names for a grand jury wheel. Names of a panel of grand jurors are to be drawn from the grand jury wheel, if there is one, and from the petit jury wheel, if there'is not. A grand jury so selected is to serve during the calendar year for which it is selected unless sooner discharged by the court. There is no provision whatever for the selection of a special grand jury after the regular grand jury selected has been discharged or, as here, when the jury wheel from which they might be selected has been quashed.
If § 39-218 has the impact accorded it by the majority, then there is absolutely no means of convening a special grand jury after the regular grand jury has been discharged.2 The General Assembly certainly did not mean to create such a void. We are actually left with the same situation that existed when Rowland was decided.
Such a void is wholly undesirable. Even though grand juries are not as important in the scheme of law enforcement as they were before the adoption of Amendment 21 to our constitution, they may still play a very vital role. The grand jury is still an arm of the circuit court. Spight v. State, 155 Ark. 26, 243 S.W. 860. It is an inquisitorial body with broad investigatory powers. Collins v. State, 200 Ark. 1027, 143 S.W. 2d 1; Ex parte Faulkner, 221 Ark. 37, 251 S.W. 2d 822. Grand jurors are required to present to the grand jury all law violations of which they have knowledge or may receive information. Ark. Stat. Ann. § 43-904, 909 (Repl. 1964). Grand juries are charged with inquiring into cases of persons, either in jail or on bail, who have not been indicted or informed against, into the condition and management of public prisons, into willful and corrupt misconduct in office of public officers and into all public offenses. Ark. Stat. Ann. § 43-908 (Repl. 1964). It may examine all public records and has access to all public prisons [Ark. Stat. Ann. § 43-910 (Repl. 1964)], and has the duty of examining the condition of accounts of collecting officers, dockets of justices of the peace, and matters relating to the common school fund. Ark. Stat. Ann. § 43-911 (Repl. 1964). It may discharge a defendant bound over, but not charged, from custody or exonerate his bail, subject to approval of the court. Ark. Stat. Ann. § 43-921 (Repl. 1964). It may compel a witness to testify even though he claims privilege against incrimination. Ark. Stat. Ann. § 28-532 (Supp. 1973).3
As a cross section of the community, it is the voice of the citizens as distinguished from that of any official, elected or appointed. In the field of criminal prosecutions it may be an aid or supplement to a prosecuting attorney. Or it may fill a void where a prosecuting attorney is not using the powers of his office to institute prosecutions that should be commenced.4 If the grand jury is an arm of the court, it is absurd to suggest that a circuit judge who is made aware of investigations that should be conducted or law violations that are not being prosecuted must sit silently arid impotently until the next calendar year if the wheel from which a grand jury should be drawn has been quashed or exhausted and the regular grand jury, if one has been impaneled, has been discharged.
While I have found it unnecessary thus far to reach the question whether, under the separation of powers, the General Assembly may regulate and control the inherent constitutional powers of the judicial department, I cannot agree with the majority that it can do so, in spite of the language quoted from Wilburn v. State, 21 Ark. 198, decided before our last four constitutions came into existence. I do not mean to suggest that the doctrine of separation of powers did not constitute a part of the Constitution of 1836.1 do mean to suggest that the quotation seized upon from Wilburn was, in the first place, dictum, pure and simple, and that it was not addressed to its holding that there were two methods for selection of a grand jury, i.e. pursuant to statute and in the exercise of the inherent constitutional powers of the circuit court. The quotation was addressed to the construction of a statute governing the selection of a regular grand jury by the county court, not the circuit court. The question raised was the validity of an indictment because four of the grand jurors were not selected by the county court at the time required by law. The court held it invalid. The language which precedes that quoted in the majority opinion is:
If the County Court had general power to select grand jurors, we might be inclined to hold that so much of this provision as prescribed a particular time when the power is to be exercised, was directory merely. But it has no such power. The power given is a special one, and the enacting clause of the statute, which confers it, also expressly limits its exercise. And the conclusion that the legislature probably did not intend the County Court should select grand jurors at any other time than that mentioned, is forfeited by the third section of the act, which makes it the duty of the sheriff to select and summon the requisite number himself if the term of the County Court, at which they are to be selected, is not held. [Emphasis mine.]
I also mean to say that the language quoted by the majority from Wilburn has not been applied in other cases, before or after Wilburn was decided. In State v. Morrill, 16 Ark. 384, where we were dealing with the inherent constitutional powers of courts to punish contempt, we said:
The Legislature may regulate the exercise of, but cannot abridge the express or necessarily implied powers, granted to this court by the constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government: and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the Federal and State institutions, and a favorite theory in the governments of the American people.
We followed Morrill in stating that the legislature could not change the number constituting a jury from the common law requirement of twelve. Cairo v. Fulton Rlrd. Co. v. Trout, 32 Ark. 17. In holding that the General Assembly could not require this court to give written reasons for its decisions in Vaughn v. Harp, 49 Ark. 160, 4 S.W. 751, we quoted from an opinion of Mr. Justice Field in Houston v. Williams, 13 Cal. 25.
He said:
If the power of the Legislature to prescribe the mode and manner in which the judiciary shall discharge their official duties be once recognized, there will be no limit to the dependence of the latter. If the Legislature can require the reasons of our decisions to be stated in writing, it can forbid their statement in writing, and enforce their oral announcement, or prescribe the paper upon which they shall be written and the ink which shall be used. And yet no sane man will justify any such absurd pretension; but where is the limit to this power if its exercise in any particular be admitted?
In keeping with the principle, we have held that the legislature cannot continue cases in the courts (Burt v. Williams, 24 Ark. 91), or prescribe rules of interpretation (Files v. Fuller, 44 Ark. 273), or require continuance of cases in which a legislator was an attorney, regardless of the time when he became associated with the case (McConnell v. State, 227 Ark. 988, 302 S.W. 2d 805).
Needless to say, I would deny the writ.
It seems to me that United States Supreme Court interpretations under the Fourteenth Amendment have no other application. I am not aware of any case that has any impact upon the method of selection, so long as it does not result in discrimination.
I am not aware of any contention that Ark. Stat. Ann. § 39-218 should be read “Twenty-five persons shall be summoned to serve as a grand or petit juror who [have] not been selected under the provisions of this Act, unless this requirement is waived by the parties.” Putting the issue thus begs the question.
This is not intended to be an enumeration of every power and duty of the grand jury. I only intend to point out that the importance of avoiding any situation in which a circuit judge would have to sit and await the expiration of a calendar year.
I do not mean to imply that such a situation exists in this case. I am speaking hypothetically only. The record before us has no such implication.