Appellee was charged in Pulaski County Municipal Court with a traffic violation. She moved to dismiss for lack of jurisdiction, asserting that Act 123, Ark. Acts of 1979 (Ark. Stat. Ann. § 22-759 et seq. [Supp. 1979]), which established the court, is unconstitutional. That court declined to rule on the motion and the circuit court granted her petition for writ of certiorari. Since the validity of a state statute was questioned, the appellant attorney general was required to intervene. Ark. Rules of Civ. Proc., Rule 24 (a), (b) and (c) and Ark. Stat. Ann. § 34-2510 (Repl. 1962). The circuit court ruled the provisions of the act establishing a county municipal court are valid pursuant to Art. 7, § 1 Arkansas Constitution (1874). However, that portion of the Act authorizing the county judge to appoint the judge of that court is unconstitutional by virtue of Art. 7, § 50 of our Constitution and Amendment 29, which require vacancies in an office to be filled by appointment of the governor pending the next general election. By direct appeal appellants challenge the court’s finding that the appointment provision is unconstitutional; by cross-appeal appellee questions the court’s finding that the county municipal court was validly created.
We first consider the issue of the constitutionality of the court. Appellee, cross-appellant, contends our Constitution does not grant the legislature the power to authorize the creation of a county municipal court. We first observe certain fundamental rules in construing the validity of a legislative act. In The State v. Chester Ashley et al, 1 Ark. 513 (1839), we said: “The legislature ... can exercise all power that is not expressly or impliedly prohibited by the constitution; for whatever powers are not limited or restricted, they inherently possess as a portion of the sovereignty of the State.” In Baratti v. Koser Gin Company, 206 Ark. 813, 177 S.W. 2d 750 (1944), we held:
. . . [T]hat the constitution of this state is not a grant of enumerated powers to the Legislature, not an enabling, but a restraining act ... and that the Legislature may rightfully exercise its powers subject only to the limitations and restrictions of the Constitution of the United States and of the State of Arkansas . . . that an act of the Legislature is presumed to be constitutional, and will not be held by the courts to be unconstitutional unless there is a clear incompatibility between the act and the Constitution; and further, that all doubt on the question must be resolved in favor of the act . . . the elementary rule is that every reasonable construction must be resorted to in order to save the statute from unconstitutionality.
See also State v. Moore, 16 Ark. 197 (1905). As recently as Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534 (1962), we reiterated that “the Legislature (which is made up of the people’s elected representatives and spokesmen) has absolute power and authority to legislate in all fields unless prohibited or restricted from doing so by the State Constitution ..
With these rules in mind, we consider both aspects of the questioned validity of the statute in question. Art. 7, § 1 provides:
The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery. (Italics supplied.)
Appellee, cross-appellant, interprets this provision to mean that the General Assembly is empowered only to establish municipal corporation courts, courts of common pleas and chancery. She buttresses her argument pointing out that Art. 7, § 43 of our Constitution speaks only of “corporation courts for towns and cities” in its provisions:
Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the General Assembly shall otherwise provide, they shall have the jurisdiction now provided by law.
However, appellants assert that Art. 7, § 1, which provides for our judicial system, does not so limit corporation courts, but speaks of “municipal corporation courts,” with the right of the General Assembly to vest such jurisdiction in them as it deems necessary. Thus, they argue, the framers contemplated the term “municipal corporation courts” to encompass more than just “courts for towns and cities.”
We have long recognized that counties are municipal corporations. Eagle et al v. Beard et al, 33 Ark. 497 (1878); Roberts, Co. Judge v. Watts, Co. Clerk, 263 Ark. 822, 568 S.W. 2d 1 (1978); and City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W. 2d 930 (1949). In the latter case we said:
We have many times announced the rule that: ‘ “Counties, cities, and towns, * * * are municipal corporations, created by the authority of the Legislature; and they derive all their powers from the source of their creation, except where the Constitution of the State otherwise provides.” ’
Furthermore, we have also recognized the validity of a legislative act which gives municipal courts countywide jurisdiction, stating that “[n]o limitation is found in the Constitution upon the power of the Legislature to vest jurisdiction in municipal courts, when established, beyond the geographical limits of municipalities. Nor can it be said that there exists any policy or sound reason for restricting the jurisdiction to such geographical limits.” State ex rel. Wm. L. Moose v. Woodruff, 120 Ark. 406, 179 S.W. 813 (1915).
Consequently, we hold that Art. 7, § 1, which empowers our General Assembly with the authority to create municipal corporation courts, includes the authority to create county municipal corporation courts. Additionally, nowhere in our Constitution is the establishment of the court in question prohibited either expressly or impliedly. Therefore, we affirm the circuit court’s finding that the act creating the court in question is constitutional.
Since we hold the court was validly created by the legislature, the remaining issue is the validity of the manner in which the judge of that court is selected. The act authorizes appointment by the county judge. Appellee, asserting this is impermissible, relies upon Art. 7, § 50 and Amendment 29, § 1. Section 50, relied on by the trial judge, provides:
All vacancies occurring in any office provided for in this article shall be filled by special election, save that in case of vacancies occurring in county and township offices six months and in other offices nine months, before the next general election, such vacancies shall be filled by appointment of the Governor.
Amendment 29, § 1 provides:
Vacancies in the office of United States Senator, and in all elective state, district, circuit, county, and township offices except those of Lieutenant Governor, Member of the General Assembly and Representative in the Congress of the United States, shall be filled by appointment of the Governor.
In McCraw v. Pate, 254 Ark. 357, 494 S.W. 2d 94 (1973), we held that “[i]t is abundantly clear that Amendment 29 completely eliminated and superseded section 50 of Art. 7...” Clearly, Amendment 29 provides only for the manner in which a vacancy is filled in an elective office. It does not appear our Constitution requires the position here to be an elective one. As stated previously, our Constitution is not a grant of enumerated powers to the legislature, rather it is a restraining act only. If the legislature has the power to create the office under the provisions of the Constitution, it is not unreasonable to conclude it also has the power to provide the manner of filling that office, its tenure, and all other necessary provisions to make the organization of the court complete and effective. The question of whether the office should be filled by appointment or election addresses itself to the wisdom of our legislature.
Applying the rules of statutory construction, previously discussed, the writer of this opinion, the Chief Justice and Justice Hays are of the view that the legislative act providing for the appointment of the judge of the court by the county judge is a valid exercise of its authority. Justices Purtle and Dudley are of the contrary view. Justices George Rose Smith and Hickman do not reach this issue since they regard the court as being invalidly created. Consequently, a majority fails to agree with respect to the validity of the appointment, which results in the affirmance of the trial court’s interpretation that the appointment is invalid.
Affirmed on direct appeal and on cross-appeal.
Adkisson, C.J., concurs; Purtle and Dudley, JJ., concur in part and dissent in part; George Rose Smith and Hickman, JJ., dissent.