dissenting. We have granted “expedited appeal” status to this significant case. The issue is whether the State or a county has the burden of financing the indigent criminal defense system at the trial court level. The plurality and concurring opinions hold that the State is the governmental entity to bear the burden. While that result might be desirable, it does not comport with our law, and, accordingly, I dissent.
William Thomas Reager, an indigent, was charged with capital felony murder in the Circuit Court of Independence County. The Circuit Court appointed Jerry Post and Oscar Jones as counsel for the accused. The attorneys devoted a considerable amount of time to the case and, under the fee cap provisions of Ark. Code Ann. § 16-92-108 (1987), would have been entitled to a fee of only $ 1,000.00 each, plus reimbursement of up to $ 100.00 for expenses. However, during the time they were preparing the defense, this court decided the case of Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), in which we held that “[ujnder the circumstances of this case, the expense and fee ‘caps’ contained in section 16-92-108 [are] unconstitutional.” Id. at 295, 813 S.W.2d at 771.
Conclusive evidence showed that Reager was not guilty of the crime, and the charge ultimately was dismissed. Each of the attorneys petitioned the circuit court to certify the amount of his fee to the County Court of Independence County. On hearing Post’s petition, the circuit court certified to the county court an attorney’s fee of $40,385.29 and directed the county to pay the amount certified. The County paid Post’s fee in full, and his fee is not at issue. On hearing Jones’s petition, the circuit court ruled that Jones was entitled to a fee of $22,986.00 and to $602.85 as reimbursement for expenses. Unlike its ruling on Post’s petition, the circuit court ruled on this petition that Independence County would be liable for only $450.00 of the attorney’s fee and expenses and that the State would be liable for the remaining $23,138.85. At that point in the proceeding, the Attorney General was given notice and was allowed to intervene. The Attorney General petitioned the court to modify its ruling, but the circuit court refused to do so. The Attorney General, on behalf of the State, appeals. The primary issue is whether a county or the State must pay the attorney’s fee and expenses for the defense of an indigent in a criminal case.
The plurality opinion holds that the responsibility for payment of the attorney’s fee and expenses is for the State to bear, but the reasoning for that conclusion is not clear. The crux of the holding is in the last half of the penultimate paragraph, which provides:
[T]here remains no statutory authority for placing the payment of Mr. Jones’ fee on the county. However, we have recently held that appointment of counsel in criminal cases results in a taking of the appointed counsel’s property for which he must be justly compensated, so even though there exists no statutory authority for awarding attorneys fees and expenses to counsel who represent indigent defendants, it is constitutionally required. Kemp, 306 Ark. 294, 813 S.W.2d 770. As we have recognized before, the “statute imposes a burden upon the count [y] to pay fees to attorneys representing indigents which the count [y] would not be responsible for otherwise.” State v. Conley, 270 Ark. 139, 141, 603 S.W.2d 415, 416 (1980). Payment of fees to attorneys representing indigents is a responsibility of the state which the legislature had delegated to the counties by statute. Since there is no statute delegating this duty to Independence County, the state is responsible for payment of Mr. Jones’ fee and expenses.
The plurality opinion simply says there is a statutory void, and, therefore, the expense must fall on the State. There is no reasoning. The plurality opinion could just as well have provided that there is a statutory void, and, therefore, the expense must fall on the county. However, there are sound reasons for a different holding in this case, and those are found in constitutional provisions and the doctrine of the inherent power of courts.
The Constitution of the United States mandates that counsel be appointed for indigent defendants. Gideon v. Wainwright, 372 U.S. 335 (1963). Article 2, section 10 of the Constitution of the State of Arkansas provides that an accused has the right to “be heard by himself and his counsel,” and Article 2, section 8 provides that no person may “be deprived of life, liberty or property, without due process of law.” It is beyond question that the federal and state Constitutions together mandate that an indigent defendant cannot be tried for a felony or serious misdemeanor without assistance of counsel. If some governmental entity does not provide counsel for an indigent defendant, the state may not try that person for the commission of a crime.
The plurality opinion seems to imply that the state constitution provides the State will pay counsel for an indigent defendant. No citation of authority is given, and this court has previously said there was no such provision. Our most recent statement on this subject was in 1980, and we wrote: “At common law there were no provisions for payment for those attorneys appointed to defend indigents. See also, Pickens v. State, 301 Ark. 244, 783 S.W.2d 341 (1990). Neither the state nor the federal Constitutions make provisions for payment of attorneys in such cases.” State v. Ruiz & Van Denton, 269 Ark. 331, 333, 602 S.W.2d 625, 626 (1980). In sum, there is no constitutional provision that mandates that the State must pay the fee of an attorney representing an indigent defendant.
Neither the state nor the federal Constitution contemplates a person being discharged from the commission of a crime solely because he or she is indigent. It seems unassailable that both the federal and state Constitutions contemplate that the trial court will provide counsel for an indigent defendant, but neither provides the manner of payment. Since there is no provision for the payment of attorney’s fee, the trial court must exercise its inherent power to order such payment.
In Abbott v. Spencer, 302 Ark. 396, 790 S.W.2d 171 (1990), we discussed the doctrine of inherent power of the court as follows:
The doctrine, in summary, is that the constitution mandates that there be three separate but equal branches of government, and therefore, inherent in the constitution is the principle that when one of the other branches of government fails to fund a court that court has the power to order those acts done which are necessary and essential for the court to operate.
Id. at 398, 790 S.W.2d at 172.
In Turner, Ex Parte, 40 Ark. 548 (1883), we discussed the requirement that a county supply a court house for the circuit court, and wrote:
If no court-house, or an insecure one, is provided, the Circuit Court by virtue of that inherent authority which all Courts of record possess, might cause convenient apartments to be procured elsewhere in the town for the time being, the expense of which could be certified down to the County Court and payment ordered of the incidental expense of holding Court.
Id. at 551.
In other cases we have said that a court has the inherent power to command an orderly, efficient, and effective administration of justice, Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989); to punish for contempt in the court’s presence, Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991); to adopt rules of evidence, Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986); to order remittitur, Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); to modify a judgment within ninety days, Blissard Management & Realty, Inc. v. Kremer, 284 Ark. 136, 680 S.W.2d 694 (1984); to deal with insanity matters incidental to criminal law, Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); to award alimony during period when controlling statute was unconstitutional, Sweeney v. Sweeney, 267 Ark. 595, 593 S.W.2d 21 (1980); to make rules of procedure, Miller v. State, 262 Ark. 223, 555 S.W.2d 563 (1977); to appoint a special prosecutor when the prosecuting attorney is implicated in a crime, Weems & Owen v. Anderson, 257 Ark. 376, 516 S.W.2d 895 (1974); to make rules for the guidance of court clerks, Christy v. Speer, 210 Ark. 756, 197 S.W.2d 466 (1946); to disbar an attorney, Hurst v. Bar Rules Committee, 202 Ark. 1101, 155 S.W. 697 (1941); and to direct the selection and summoning of a petit jury at a special term, Norrid v. State, 188 Ark. 32, 63 S.W.2d 526 (1933). In the absence of a statute providing for payment of a court-appointed attorney, the trial court would have the inherent authority to order, as a necessary expense of court, that a reasonable fee be paid the attorney.
The inherent power of a court is to be exercised in a conservative manner and only in those areas that are vital for the proper functioning of a court. Turner, Ex Parte, 40 Ark. 548 (1883). A court should look to legislation for guidance, when possible, in the manner of exercising inherent power.
The state constitution, and statutes providing for courts, lead one to the conclusion that the trial court, pursuant to its inherent power, should have ordered the county to pay the attorney’s fee. Under the Arkansas Constitution, judicial officers, as one department of state government, are state constitutional officers and, as such, are to be paid by the State. Cotham v. Coffman, 111 Ark. 108, 163 S.W. 1183 (1914); Ark. Const, art. 19, § 11 (as amended by Amendment 43). Prosecuting Attorneys are constitutional state officers acting in a quasi-judicial capacity and likewise are to be paid by the State. Smith v. Page, 192 Ark. 342, 91 S.W.2d 281 (1936). The remuneration of all other circuit court officers and employees is controlled by statute and has traditionally been paid by the counties. In 1981, court reporters of circuit and chancery courts were made state employees, see Ark. Code Ann. § 16-13-501 (1987), but, under the applicable statutes, all others remain county employees. The deputy prosecuting attorney is a county employee, see, e.g., Ark. Code Ann. § 16-21 -2004 (1987); the public defender is a county employee, see Ark. Code Ann. § 16-87-107 (Supp. 1991); the circuit clerk is a county employee, Ark. Code Ann. § 14-14-1204 (Supp. 1991); the sheriff or bailiff is a county employee, see, e.g., Ark. Code Ann. § 16-13-1413 (Supp. 1991); the circuit court’s secretary is a county employee, see, e.g., Ark. Code Ann. § 16-13-1411 (Supp. 1991); the circuit court’s probation officer is a county employee, see, e.g., Ark. Code Ann. § 16-13-1412 (Supp. 1991); the circuit court’s field investigator is a county employee, see, e.g., Ark. Code Ann. § 16-13-1418 (1987); the circuit court’s case coordinator is a county employee, see, e.g., Ark. Code Ann. § 16-13-1409 (Supp. 1991); the circuit court’s law clerk is a county employee, see, e.g., Ark. Code Ann. § 16-13-1410 (Supp. 1991).
The courthouse, which is just that, a building where the circuit court is housed, must be provided by the county. See Ark. Code Ann. § 14-19-108 (1987). The county also pays for the utilities necessary for the courtroom and for the books and stationery for the circuit judge. Ark. Code Ann. § 16-10-123 (1987). In addition, the county is responsible for holding all prisoners before trial. Ark. Code Ann. § 12-41-509 (1987).
The statutes applying to the payment of attorneys’ fees are equally clear. Until the middle of this century attorneys were required by case law to represent indigent defendants without remuneration. In 1953, the General Assembly modified that policy and, by Act 276 of 1953, provided that when a circuit court appointed an attorney to defend an indigent defendant, the circuit judge could order the county to pay not less than $25.00, nor more than $250.00, for the attorney’s services. The next legislation, Act. 246 of 1977, Ark. Code Ann. § 16-92-108 (a), (b)(1), (3), and (c)(1) (1987), raised the amount of attorneys’ fees that could be paid by the county. These are the “fee cap” statutes.
Act 24 of 1979, Ark. Code Ann. § 16-92-109 (1987) as now amended, allows a county to apply to the state for reimbursement of certain costs incurred by the county in conducting felony trials. The purpose of the statute is primarily to reimburse counties for witness and juror fees and mileage, but expressly exempted from reimbursement are “salaries and expenses” of “court appointed attorneys.” Ark. Code Ann. § 16-92-109 (a)(2) (1987). There is not now, nor has there ever been, a statute that provides that the State shall pay the salaries and expenses of court-appointed attorneys. Rather, the “fee cap” statutes provided that the county would pay those salaries and expenses, and Ark. Code Ann. §14-20-102 (1987) provides that a county may “provide for the creation of a fund to be used for the sole purpose of paying reasonable and necessary costs incurred in the defense of indigent persons accused of criminal offenses” by assessing $5.00 court costs in each civil and criminal case filed in the county. If the county does not wish to pay court-appointed attorneys on an individual attorney basis, it can create and fund the office of public defender. Ark. Code Ann. § 16-87-102, 107 (1987 & Supp. 1991).
The above cited statutes together provide that the county shall bear the cost of holding circuit court, except for the salaries of the judiciary and quasi-judiciary employees, and the salary of the court reporter. This is because “[c]ounties are civil divisions of the State, for political and judicial purposes, and are its auxiliaries and instrumentalities in the administration of its government.” Cole v. White County, 32 Ark. 45, 51 (1877).
The case of St. Francis County v. Cummings, 55 Ark. 419, 18 S.W. 461 (1892), provides guidance in how the inherent power should be exercised in the case at bar. In that case a decomposed body was found, and the county coroner asked a physician named Cummings to conduct a post mortem examination in order to determine the cause of death. The doctor conducted the examination and submitted a claim of $ 125 to the county for services. Just as in the case at bar, there was no statute authorizing the county to pay such a claim, and the county court therefore disallowed the claim. The doctor appealed to circuit court, and that court ordered the claim paid. The county appealed to this court, and we affirmed the circuit court even though no statute specifically required the county to allow the claim. In languagé that fits the case at bar, we wrote, “As a rule the counties are responsible for the expenses of the administration of the criminal laws. Both justice and policy demand an adherence to the rule. . . Id. at 422, 18 S.W. at 461 (emphasis added).
Another case also provides some guidance in how the inherent authority should be exercised, in Jefferson County v. Hudson, 22 Ark. 595 (1861), the sheriff was required to summon witnesses to appear before the grand jury, and he asked for fees for so doing. (At that time county officers were on a fee system.) No statute provided for such fees. The dispute ultimately reached this court, and we wrote:
The fees for summoning witnesses to appear before the grand jury, not being taxable costs in any particular criminal case, are part of the public expense of carrying on the Circuit Court, like the expense of furnishing fuel, stationery, &c., &c., and are payable out of the county treasury; and upon a fair construction of sections 30, 31, 32, 33, 34, chap. 50, Gould’s Digest, we think it is the province of the Circuit Court, in which the expenses occur, to audit and adjust the accounts of the sheriff and clerk therefor, and to certify them to the County Court for allowance, and that the County Court has no authority to reject or reduce a claim so authenticated for such expenses.
Id. at 600.
It may be that the General Assembly ought to enact a statute placing the burden on the State for paying attorneys’ fees for indigent defendants, but, until it chooses such course, it seems clear that under the inherent power of the trial court, the trial court should order the county to pay the uncapped fee. This reasoning comports with the facts that a majority of counties have already established public defender programs, and are currently paying for them, and the fact that a smaller number of counties, such as Independence County, now collect court fees to pay attorneys for defending indigent defendants. Yet, under the plurality and concurring opinions, the counties are not liable for the fees of attorneys who defend indigents. I dissent.
Hays and Newbern, JJ., join in this dissent.