author: Steele Hays, Justice.

text:
    Keith CARLE v. David BURNETT, Circuit Judge
    92-322
    845 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal from a judgment finding appellant Keith Carle to be in contempt of the Craighead Circuit Court. Carle, an attorney and sole practitioner in Jonesboro, was sentenced to ninety days in jail for a willful refusal to proceed to trial in the case of Helen Cater v. Lee Cater. Carle contends the trial judge erred in three respects: in refusing to recognize substantive error in the order being defied, in sentencing him under its inherent power after trying him under a statutory definition of contempt, and in imposing an excessive punishment. Finding merit only in the third point, we modify the punishment imposed and otherwise affirm the judgment appealed from.

Keith Carle represented Lee Cater in a divorce suit with Helen Cater. While that suit was pending Mrs. Cater was subjected to a beating for which she accused Lee Cater. Cater denied the accusation and claimed to have been elsewhere at the time. Mrs. Cater filed suit for damages and on her complaint criminal charges for assault and battery were brought against Lee Cater.

The civil suit was called for trial in January of 1991 while the criminal case was pending. The suit was passed on motion of the defendant and reset for trial in April. Cater again moved for a continuance, which was denied, but the case was reset for October 21 due to a crowded docket.

On September 24 Cater again moved for a continuance on multiple grounds: his assets were frozen as a result of the divorce case, a key witness was unavailable, a possible conflict because of other cases existed; Cater also asked that Judge David Burnett recuse. Judge Burnett refused to recuse and denied the motion to continue.

On October 18 Cater again moved for a continuance and the motion was heard. Carle argued that the criminal case was scheduled for the same week and that a key witness was unable to attend trial. Judge Burnett determined from the prosecutor that the criminal case could be scheduled so as not to conflict and that the witness could testify by video deposition or her testimony from the criminal trial could be transcribed and introduced. The motion was again denied.

On October 21 with the trial judge, opposing counsel, litigants and a jury panel present and prepared to try the case of Cater v. Cater, Mr. Carle delivered a notice of his withdrawal as counsel for Lee Cater and refused to proceed.

After satisfying himself that Carle’s position was adamant and that he was aware of the consequences, Judge Burnett continued the case, cited Mr. Carle for contempt and recused from the contempt proceedings. Judge Harold Erwin was designated to conduct the contempt proceedings which were tried on December 31 after a pretrial hearing on December 23. At the close of the trial Judge Erwin found Keith Carle to be in contempt of court and sentenced him to ninety days in jail. This appeal followed.

Before taking up the arguments,, we mention that in an appeal of a case of criminal contempt, we view the record in the light most favorable to the decision of the trial judge and sustain that decision if it is supported by substantial evidence. Atkinson v. Lofton, 311 Ark. 56, 842 S.W.2d 425 (1992).

The Order

As in the trial court, Carle argues that his constitutional and statutory rights were impinged by Judge Erwin’s refusal to consider in defense of the contempt charge that Judge Burnett abused his discretion in ordering him to proceed with trial on October 21. Carle cites Ark. Code Ann. § 5-1-111(c) (1987) as requiring a charge to the jury that reasonable doubt on the issue of defense requires acquittal and defines “a defense” as any matter involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence.

Appellee’s brief excepts to that contention, pointing out that Judge Erwin made a finding that Judge Burnett did not abuse his discretion in denying a continuance and ordering the trial to proceed as scheduled. But we need to resolve that rather ambiguous issue, as we think the law is long settled- where the failure or refusal to abide by an order of the court is the issue, we do not look behind the order to determine whether the order is valid. In Meeks v. State, 80 Ark. 579, 98 S.W. 378 (1906), we upheld the contempt, refusing at the same time to review the underlying order:

The court had jurisdiction to render such a decree, and the fact that it was erroneous would not excuse disobedience on the part of those who were bound by its terms until reversed. Nor does the fact that the decree has been appealed from excuse disobedience until the same has been superseded in a manner provided by law. The appeal alone does not stay proceedings under the decree, and as long as the decree remains in force its terms must be obeyed.

That rule was adhered to in Whorton v. Hawkins, 135 Ark. 507, 205 S.W.2d 91 (1918) and the principle itself was recently underwritten by the Supreme Court in United States v. Rylander, 460 U.S. 752 (1983):

It would be a disservice to the law if we were to depart from the long-standing rule that a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy. The procedure to enforce a court’s order commanding or forbidding an act should not be so inconclusive as to foster experimentation with disobedience.

Carle contends that we have looked beneath the order on occasion and recognized substantive error as a defense in contempt proceedings, naming Atkinson v. Lofton, 311 Ark. 56, 842 S.W.2d 425 (1992); Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991); Norton v. Taylor, 299 Ark. 218, 772 S.W.2d 316 (1989) and Lessenberry v. Adkisson, 255 Ark. 285, 499 S.W.2d 835 (1973). But while it might be possible to read one or more of those cases as an exception to the rule, they are to no avail in this case for reasons that should be readily apparent. The underlying setting of those cases was contempt, but beyond that the similarities begin to fade. In Atkinson, the attorney did not defy an order of the court, he was held in contempt simply for asking for a continuance. In Lessenberry, we held the attorney was within his right in refusing to represent a client whom he had never agreed to represent and who had proposed a fictitious defense to drug charges. Moreover, the opinion places particular emphasis on the fact that the attorney’s refusal did not interfere with the orderly conduct of the court’s business.

In Arnold v. Kemp, supra, as in Lessenberry, supra, and Atkinson, supra, the actions by the attorneys did not interfere with the orderly conduct of the court’s business. Beyond that, the attorneys were challenging on constitutional grounds the fee limitation in criminal cases by the only means available, risking contempt- a challenge this court ultimately sustained.

In Norton v. Taylor, supra, the attorney was held in contempt for refusing to represent a nonindigent defendant in a probation revocation proceeding as ordered by the circuit court. We held the court was without authority to order the attorney to provide legal services to a nonindigent defendant under the circumstances presented. Unlike Carle, Norton had not undertaken to represent the defendant, nor were his actions disruptive of the court’s docket.

In sum, what distinguishes these cases, we believe, from the case at bar, is legitimate and successful challenges to the validity of a court order, in contrast to a refusal to comply with an order which was clearly within the court’s jurisdiction and power, i.e., the denial of a motion to defer the trial of a case.

Inherent Power

Keith Carle maintains that it was error for the trial court to try him under the contempt statute [Ark. Code Ann. § 16-10-108 (1987)] and sentence him under the inherent power of the court. The statute reads:

(a) Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others:
(3) Willful disobedience of any process or order lawfully issued or made by it;
(b) (1) Punishments for contempt may be by fine or imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court. However, the fines shall in no case exceed the sum of fifty dollars ($50.00), nor the imprisonment ten (10) days.

The standard regarding the inherent power of the court is included in Article 7, Section 26 of the Arkansas Constitution. This provision states:

The General Assembly shall have power to regulate by law the punishment of contempt not committed in the presence or hearing of the courts, or in disobedience of process.

Carle’s argument that he was informed of the offense with which he was charged at the pre-trial hearing and then convicted of another version of which he was not informed is incorrect. At the pre-trial hearing, Carle requested that he be informed of the charges against him. The trial court responded that it would be proceeding under Ark. Code Ann. § 16-10-108(a)(3) and under the court’s inherent powers to punish a direct contempt. As to the range of punishment, Carle insisted the court was bound by the statutory limit. The trial judge disagreed but stated that he would work within the range of penalties used for Class A misdemeanors. Therefore, the appellant was given notice of the offense as required in Fitzhugh v. State, 296 Ark. 137, 752 S.W.2d 275 (1988).

At the contempt hearing, Carle again attempted to persuade the court that his conduct did not fall under the inherent power of the court. The court rejected the argument, stating, “The court is not going to abandon its inherent powers doctrine, right.” (TR. 47.)

The power to punish for contempt is inherent in courts and they may go beyond the powers given by statute. See Henry v. Eberhard, 309 Ark. 336, 832 S.W.2d 467 (1992); Edwards v. Jameson, 284 Ark. 60, 679 S.W.2d 195 (1984). We have interpreted Ark. Code Ann. § 16-10-108(a)(3) and held that it is not a limitation on the power of the court to impose punishment for disobedience of process. Yarbrough v. Yarbrough, 295 Ark. 211, 748 S.W.2d 123 (1988).

The implied powers doctrine clearly applies here. This was a direct contempt in the “presence and hearing” of the judge. Although Carle’s behavior would not qualify as “disorderly, contemptuous or insolent” due to his demeanor, he still chose to disregard a lawful order of the court.

Also, conduct was in “disobedience of process” even though Carle argues that the order did not constitute process because it was not in writing. In Arkansas Department of Human Services v. Clark, 305 Ark. 561, 810 S.W.2d 331 (1991), the court stated that process in the sense of the statutes is a comprehensive term which includes all writs, rules, orders, executions, warrants, or mandates issued during the progress of an action. Even though the court’s order was verbal, Carle’s conduct still constituted disobedience of process.

Therefore, Carle’s actions in disobeying the court’s order fell within the inherent powers of the court to punish for contempt and the court was not bound by the limitations set out in the contempt statute.

The Punishment

Keith Carle contends the sentence of ninety days in jail is excessive in light of all the facts and circumstances. He submits that because his sincerity and lack of motive for personal gain are not questioned the sentence is wholly disproportionate to the offense. We agree that the punishment is unduly harsh.

Our power to modify punishment imposed for contempt has been recognized in numerous cases: Page v. State, 266 Ark. 398, 583 S.W.2d 70 (1979); Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974); Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W.2d 393 (1971); Garner and Rosen v. Amsler, Judge, 238 Ark. 34, 377 S.W.2d 872 (1964); Fossom v. State, 216 Ark. 31, 224 S.W.2d 44 (1949); Smith v. State, 28 Ark. App. 56, 770 S.W.2d 205 (1989). In Garner, we modified sentences of ten and five days in jail imposed on two attorneys who claimed without basis in fact that a petit jury was “stacked” against their client. Writing for the court, Justice George Rose Smith noted that the principal justification for contempt lies in the need for upholding public confidence in the majesty of the law and in the integrity of the judicial system and “when we have found these ends will be met despite a reduction or even a remission of a jail sentence for contempt it has been our practice to modify the judgment.” With that said, the sentences were reduced to two days in jail.

While we view the offending conduct in this case with the utmost gravity, we are not persuaded it was prompted by other than a misguided belief that his client’s interest required it, however ill conceived that may have been. It has not been shown that this conduct, or anything similar, is repetitive and it seems unlikely there will be a recurrence. Therefore, we believe a punishment of five days in jail and a fine of $500 to be sufficient and in keeping with our prior rulings in such matters. See the cases cited above. With that modification, the order appealed from is

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Randy Dean LEACH v. STATE of Arkansas
    CR 92-639
    845 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993
    [Rehearing denied March 29, 1993.]

      Callis L. Childs, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This appeal is before us on a petition to review a decision by the Court of Appeals, Leach v. State, 38 Ark. App. 117, 831 S.W.2d 615 (1992). Petitioner, Randy Leach, was convicted of conspiracy to commit aggravated robbery of a Wal-Mart courier and received a six-year sentence and a $5,000 fine. The conspiracy charge was interrelated with two other conspiracies, for which Leach and two others were charged. These latter conspiracies were tried separately. The Court of A ppeals reversed the judgment of conviction, finding merit in two points of error. Leach petitioned for rehearing on two additional points but the petition was denied. We granted review and the case is now before us on the two points rejected by the Court of Appeals.

In the first of those, Leach argued that the trial court erred in admitting his confession because it was the result of a threat. The substance of the prosecutor’s remarks to Leach just prior to his confession is not disputed, that the state had enough evidence to charge him for capital murder but would refrain if Leach could give evidence sufficient to clear himself of the capital murder charge and would tell what he knew concerning the two co-conspirators. Leach was given the Miranda warnings and advised that if he admitted to any crime while giving a statement about his co-conspirators, that information could be used against him. Leach signed the waiver of rights form and gave the police information implicating his co-conspirators in various offenses. He also gave the police information sufficient to clear himself of the murder charge but which implicated him in less serious offenses. Leach was ultimately charged on one of these lesser crimes.

At the suppression hearing the prosecutor offered proof that at the time he spoke to Leach, he did have probable cause to indict him on the murder charge based on statements given by one of the co-conspirators, and this fact is not contested. The trial court held Leach’s statement admissible and it was used at trial on the conspiracy charge of this case.

Relying on Tippit v. State, 285 Ark. 294, 686 S.W.2d 420 (1985), the Court of Appeals held the statement was voluntary. In Tippit, the defendant gave a statement in exchange for a promise of leniency, which was kept, and we stated:

Under the facts and circumstances of this case, when considered in their totality, we think the trial court was correct in admitting the statement. The appellant struck a bargain which was closely related to a plea bargain and both sides kept their promise. Most likely the deal was a wise one for the appellant. In any event we can find no prejudicial error.

Leach argues the trial court was wrong because the facts in this case are distinguishable from Tippit. In Tippit it was the defendant who had proposed the bargain, whereas here the state initiated the proposal. Leach notes that in Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983), cited in Tippit, we emphasized that in determining voluntariness an important factor is whether the defendant or the state initiates the proposal. Further, Leach argues that here police used a threat, whereas in Tippit it was a promise that induced the statement.

While in Williams we did observe that the defendant’s initiation of the proposal was a critical factor, it was to show a that it changed the nature of the proposal as excluding the possibility of outside coercion. That was not to imply that a defendant’s initiation was a necessary prerequisite to finding a confession voluntary. In fact, we reiterated that no single factor was determinative but it was the totality of the circumstances that was significant.

As to the contention that the prosecutor’s statement constituted a threat rather than a promise, an arguable premise at best, we find no significance in such distinction. Our research has turned up nothing to indicate that a threat is more odious per se than a promise. Rather, the real issue concerning statements made through hope or fear is based on broader considerations of voluntariness in light of the particular inducement, whatever its nature. See John W. Strong, McCormick on Evidence § 147 (4th ed. 1992); 1 W. LaFave Criminal Procedures § 6.1, § 6.2 (1984).

Consequently, what we have said in previous cases holds true here. We will examine all of the circumstances to determine whether a statement was voluntary, and if a promise or threat was made, we will look first to the police conduct and then to the vulnerability of the defendant. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). And if a promise was made that was permissible and was kept, those are circumstances to consider in determining whether the statement was voluntary. See Tippit, supra; and Williams, supra; and Tippit v. Lockhart, 859 F.2d 595 (8th Cir. 1988).

From that preface, we turn to the specifics of this case. Randy Leach was a policeman for the Conway police department and had been working in that capacity some nine years. Recently he had been engaged in narcotics and undercover assignments.

Leach was not incarcerated prior to his statement being taken, nor formally arrested or charged. In fact he was called at his home to come to the station to discuss “some matters,” which he did. When he arrived he spoke with the prosecutor for approximately three minutes, during which the prosecutor made his proposal. The taking of Leach’s statement followed, lasting less than forty-five minutes.

While the state did suggest the proposal, it was made, not by the police but by the official authorized to bring criminal charges. See Williams, supra. The state offered proof that there was a basis in fact for the prosecutor to charge Leach with capital murder, and when Leach was forthcoming with information, the prosecution kept its end of the bargain.

We see nothing fundamentally wrong in the prosecutor advising Leach what was within his power to do under the circumstances, see LaFave, supra at 447. While this may have prompted Leach’s confession, it can hardly be argued that this was a fundamentally unfair inducement. See McCormack, supra at 568. Nor can we say that Leach’s will, given his experiences and background, was in any way overborne.

Nor is it certain Leach’s statement was induced by the prosecutor’s proposal. Leach testified the prosecutor wanted information on the co-conspirators, and was not pressing for self-incriminating information. Leach could have misled his interrogators about his own involvement and still given incriminating statements about the others. But he decided, evidently, to tell the truth. The bargain was not for a confession in exchange for a lighter sentence, but for information along with the exculpatory information in exchange for going free. If anything, Leach’s confession was gratuitous. It must be noted that Leach has not contended at any time that his confession was false.

As his second point, Leach argued to the Court of Appeals it was error for the trial court to deny individual sequestered voir dire. The Court of Appeals responded:

Before trial, the court denied [Leach’s] request for individual sequestered void dire. [Leach] argues that he was thereby inhibited from asking prospective jurors questions about their knowledge of related criminal litigation, and urges us to adopt § 3.4(a) of the Standards Relating to Fair Trial and Free Press promulgated by the American Bar Association Project on Standards of Criminal Justice. That section provides:
(a) Method of examination. Whenever there is believed to be a significant possibility that individual talesmen will be ineligible to serve because of exposure to potentially prejudicial material, the examination of each juror with respect to his exposure shall take place outside the presence of other chosen and prospective jurors. An accurate record of this examination shall be kept, by court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how his exposure has affected his attitude towards the trial, not to convince him that he would be derelict in his duty if he could not have cast aside any preconception he might have. [Our emphasis.]
[Leach] concedes that the decision to grant or deny sequestered individual voir dire is left to the discretion of the trial court. Burnett v. State, 287 Ark. 158, 697 S.W.2d 95 (1985). He also concedes that reversal will not lie absent a showing of prejudice. See e.g. Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989). Because here, as in Logan, the record does not reflect the requisite prejudice, [Leach] urges us to adopt the ABA standard and overrule the supreme court’s decisions in Logan; Hefferman v. State, 278 Ark. 325, 645 S.W.2d 666 (1983); and other supreme court cases stating the same principle. Despite [Leach’s] contention to the contrary, we lack the authority to overrule decisions of the Arkansas Supreme Court. Huckabee v. State, 30 Ark. App. 82, 785 S.W.2d 223 (1990). It will be for the circuit court to decide whether, on retrial, sequestered voir dire is necessary.

First, we find it unnecessary to overrule any previous decisions in order to approve of the ABA Standard § 3.4(a). None of the cases Leach cites, Logan v. State, supra; Hefferman v. State, supra; and Rector v. State, 280 Ark. 385, 659 S.W.2d 168 (1983), are incompatible with that standard. None of those cases require that actual prejudice be demonstrated to show an abuse of discretion. At most, we stated that no actual prejudice was in fact demonstrated, but we did not state that it was required. In none of those cases was the question posed whether individual sequestered voir dire be granted on the basis of potential prejudice only.

Leach asks us to adopt the ABA Standard, but we believe that is unnecessary. The Standard merely recognizes that at some point pretrial publicity can be sufficiently pervasive that individual sequestered voir dire would be mandated because of the likelihood that individual venirepersons have been exposed to prejudicial information. Nothing we have said in past cases would preclude any trial court from taking such an approach, if it hasn’t already done so.

In the case before us it is not necessary to review the trial court’s action, as we find no evidence that Leach was prejudiced. He argues he was limited in his questioning for fear of eliciting prejudicial information and was therefore not able to question prospective jurors individually or as a group to determine “what they knew about the charge against him.” Without that information Leach contends he was reduced to “shooting in the dark” in exercising his peremptory challenges.

We find no basis for this claim. The record reveals that counsel did in fact ask the jury a number of times what they knew about the case. He asked the question en masse and then called on individuals who had their hands raised and received more detailed information as to what these individuals knew or had heard about the defendant. We find nothing prejudicial in these answers and Leach advances nothing additional in that regard.

On remand, should the question arise again the trial court is free to decide, in its discretion, whether there is sufficient showing of potential prejudice to warrant individual sequestered voir dire.

We affirm the decision of the Court of Appeals.

       This was an appeal from a denial of a writ of habeas corpus of Tippit v. State, 285 Ark. 294, 686 S.W.2d 420 (1985), which appellant has attempted to distinguish. The Eighth Circuit held that a promise to a defendant which was kept by the prosecutor, was just one of the circumstances to consider in the totality of circumstances, and there was no discussion of who had initiated the bargain or whether it was a promise or a threat.

        See, e.g., United States v. Liddy, 509 F.2d 428 (D.C. Cir. 1974); United States v. Brown, 540 F.2d 364 (8th Cir. 1976).


text:
    Brenda WISDOM v. Jocie Ellen McBRIDE
    92-773
    845 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Murphy, Post, Thompson, Arnold & Skinner, by: Tom Thompson and J. T. Skinner.

      Harkey, Walmsley & Blankenship, by: Tim Weaver, for appellee.
   Steele Hays, Justice.

By this appeal we are asked to decide one issue: did the probate court abuse its discretion in the appointment of an administratrix.

Russell Merriman was killed in a motor vehicle collision on April 3,1991. His mother, Brenda Wisdom, appellant, promptly filed a petition in Independence County probate court asking that she be appointed administratrix of the estate. A day later, Jocie McBride, the deceased’s paternal grandmother, appellee, also filed a petition in the same court asking to be named administratrix. Her petition was supported by five other family members: a brother, a sister, the father and two half-sisters. A hearing was held and the trial court found that Jocie Ellen McBride should be appointed as administratrix. Ms. Wisdom appeals from that order.

The governing statute in this case, and the one relied on by the trial court, is Ark. Code Ann. § 28-48-101 (1987), which provides:

(a) Domiciliary letters testamentary or of general administration may be granted to one or more of the natural or corporate persons mentioned in this section who are not disqualified, in the following order of priority:
(1) To the executor or executors nominated in the will;
(2) To the surviving spouse, or his or her nominee, upon petition filed during a period of thirty days after the death of the decedent.
(3) To one or more of the persons entitled to a distributive share of the estate, or his or her nominee, as the court in its discretion may determine. . . . [Our emphasis.]

Wisdom was qualified in the first instance to serve because she was one of the persons entitled to a distributive share under the statute. McBride was also qualified to serve in the first instance because even though she was not entitled to a distributive share, she had been nominated by persons who were. The trial court pointed this out and found both applicants qualified, explaining that in such cases he simply took a vote of the distributees and granted letters on the basis of the most votes. In that light Ms. McBride easily won, 5-1.

Ms. Wisdom’s argument is made in two steps. First, she argues that all distributees’ votes should not be equal but should be counted in the order of priority listed in the tables of descent at Ark. Code Ann. § 28-9-214 (1987). Under that statute, she maintains that she and Ms. McBride had a tie vote.

Ms. Wisdom then argues that the facts supported a finding that she would have been the appropriate choice. She cites testimony as to the reasons various distributees gave for preferring Ms. McBride as administratrix. She notes that her background included some business experience, i.e., receptionist, cashier and interviewer for a marketing research company, and made her more qualified, that she was only forty-three, whereas McBride was sixty-four and had worked for twenty-two years on an assembly line.

As to the argument that the trial court should weigh votes in the order of descent as prescribed in another statute, Wisdom offers no authority and we find nothing in § 28-48-101 suggesting that method is intended. Section 28-48-101 is quite clear in its direction to the court on appointment: “. . .To one or more of the persons entitled to a distributive share. . . .” Nothing in that statute sustains Wisdom’s argument.

Even if we were to follow Ms. Wisdom’s reasoning in applying the descent statute, we would still affirm. If the trial court were to find a tie-vote at the first level of priority, it would be logical to proceed to the next level to break the tie, which would still favor Ms. McBride.

The decision on the appointment of an administrator is within the discretion of the trial court, Knight v. Worthen Bank and Trust, 233 Ark. 465, 345 S.W.2d 361 (1961), and no abuse of discretion has been shown.

Affirmed.


author: David Newbern, Justice.

text:
    Jeremiah HOLLAND v. STATE of Arkansas
    92-804
    844 S.W.2d 943
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Karen R. Baker, for appellant.

      Winston Bryant, Att’y Gen., by: Teena L. White, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

Jeremiah Holland, the appellant, is charged with first degree murder in Searcy County Circuit Court. His motion to transfer to Juvenile Court was denied, and he has brought this interlocutory appeal. Holland argues the evidence he presented with respect to his mental immaturity and his prospects for rehabilitation in the juvenile system, as opposed to what he would face if convicted as an adult, warranted the transfer. We affirm the Trial Court’s decision not to transfer the case.

Holland was charged in Searcy County Circuit Court with killing his ten-year-old cousin, Sheera Fruitt. The Trial Court was presented with evidence that Fruitt was strangled with an electrical cord, and her body, which was weighted with large rocks, was recovered from a pond near the home where she lived with her mother and Holland.

At a hearing on the transfer motion the Trial Court was presented with two psychiatric reports from the State Hospital indicating Holland suffered from a conduct disorder and alcohol abuse. A clinical psychologist who examined Holland testified that his mental maturity was less than his chronological age, which was 17 at the time of the examination (16 at the time the offense was committed), and that while Holland’s intelligence was normal, he did not function normally in social situations. The psychologist also testified Holland’s prospects for rehabilitation were better in the juvenile system. The State introduced no evidence but asked the Court to take judicial notice of the psychological reports and the facts and circumstances surrounding the offense charged. The Trial Court denied the motion without stating reasons.

Arkansas Code Ann. §9-27-318(e) (Repl. 1991) sets out the guidelines for determining when an offense should be transferred from Circuit to Juvenile Court, and it provides:

In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors: (1) the seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense; (2) whether the offense is part of a repetitive pattern of adjudicated offenses which would lead to the determination that the juvenile is beyond rehabilitation under existing rehabilitation programs, as evidenced by past efforts to treat and rehabilitate the juvenile and the response to such efforts; and (3) the prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile’s prospects for rehabilitation.

Cobbins v. State, 306 Ark. 447, 816 S.W.2d 161 (1991).

Subsection (f) of the statute requires a “finding by clear and convincing evidence that a juvenile should be tried as an adult.” We have, however, recognized that the serious and violent nature of an offense is a sufficient basis for trying a juvenile as an adult. Wicker v. State, 310 Ark. 580, 839 S.W.2d 186 (1992); Slay v. State, 309 Ark. 507, 832 S.W.2d 217 (1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991). While the record does not demonstrate the consideration given by the Trial Court to the evidence Holland presented, we have held there is no requirement that every element mentioned in the statute be given equal weight. See, e.g., Cobbins v. State, supra; Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991). In view of the most serious and violent nature of the offense charged in this case, we cannot say the Circuit Court’s decision to retain jurisdiction was clearly erroneous or clearly against the preponderance of the evidence. See Bradley v. State, 306 Ark. 621, 816 S.W.2d 605 (1991).

Affirmed.


author: Tom Glaze, Justice.

text:
    CITY OF SPRINGDALE, Arkansas, a Municipal Corporation, and Jeffery Lee Reeves v. The Incorporated TOWN OF BETHEL HEIGHTS
    92-737
    845 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Jeff C. Harper, Springdale City Att’y, for appellant City of Springdale. Cypert, Crouch, Clark & Harwell, by: James E. Crouch, for appellant Reeves.

      Richard S. Hardwicke, Bethel Heights City Att’y, for appellee.
   Tom Glaze, Justice.

In this annexation case, the Town Council of Bethel Heights, pursuant to Ark. Code Ann. § 14-40-301 to-303 (1987), passed Ordinance No. 42, which submitted to the town’s voters the question of annexing seven separate tracts of land. After the election on November 6,1991, the Benton County Election Commission tabulated votes and certified all tracts had been approved except tract four, which the voters rejected by twelve votes. The Commission later discovered that only one or two (or less than ten) voters in precinct Washington A were qualified to vote on the tract four annexation question, so it invalidated the votes from that precinct, leaving 52 votes for annexation and 33 against. The Commission then certified this final tally, but later mistakenly filed the original certification with the Secretary of State’s office showing tract four’s annexation had failed.

On May 16, 1991, and after the Benton County Election Commission tabulated and certified Bethel Heights’ annexation election, Jeffery Lee Reeves, who owns property in the disputed tract four described above, petitioned pursuant to Ark. Code Ann. § 14-40-401 (1987) to have his property annexed to the City of Springdale. The Benton County Circuit Court subsequently entered an order granting Reeves’ petition. However, Bethel Heights then intervened requesting the annexation order be set aside based on the grounds that Bethel Heights had already annexed tract four. The City of Springdale, claiming an interest in the property, was also allowed to intervene.

The Benton County Circuit Court later set aside its earlier order and denied Reeves’ petition, finding the disputed tract four had already been annexed to Bethel Heights, and the court further held it could find no authority which allowed one city to annex a tract of land which belongs to another city at the time of the proposed annexation. While the trial court recognized Reeves’ and Springdale’s arguments that irregularities occurred in Bethel Heights’ annexation of the disputed tract, it concluded such irregularity claims were barred by applicable limitation statutes. We agree and therefore affirm.

In this appeal, Reeves and the City of Springdale raise several points for reversal, first, questioning the passage and validity of Ordinance No. 42 which submitted the annexation of tract four and the other tracts to the voters of Bethel Heights; second, arguing various other procedural reasons why Bethel Heights’ annexation should be invalidated; and third, contending Bethel Heights’ entry into the Springdale annexation proceeding was too late because no protest or objection was filed before the Benton County Circuit Court had entered its first order allowing annexation of Reeves’ property. Most of the appellants’ arguments are procedurally barred so we will discuss the' limitation issue first.

Appellants complain Bethel Heights council’s passage of its annexing ordinance No. 42 was defective because the council or its members failed to meet or violated certain by-laws and statutory requirements when adopting that ordinance. It is unnecessary to undertake a full discussion of each of appellants’ arguments in this respect because they are procedurally barred under § 14-40-304 which is controlling and provides as follows:

(a) If it is alleged that the area proposed to be annexed does not conform to the requirements and standards prescribed in § 14-40-302, a legal action may be filed in the circuit court of the county where the lands lie, within thirty (30) days after the election, to nullify the election and to prohibit further proceedings pursuant to the election.
(b) In any such action filed in the circuit court of the county where the lands lie, the court shall have jurisdiction and the authority to determine whether the procedures outlined in this subchapter have been complied with and whether the municipality has used the proper standards outlined in § 14-40-302 in determining the lands to be annexed. (Emphasis added.)

It is undisputed that no one filed suit under the foregoing provision to challenge the procedures followed by Bethel Heights in calling its annexation election. Clearly, the Benton County Circuit Court had the jurisdiction and authority to consider and decide such issues under § 14-40-304(b) above if a complaining party had filed suit within thirty days of the November 6, 1991 election. Since neither appellants nor others did so, appellants’ attempt now to raise such an issue in this collateral proceeding must fail.

Appellants also offer the argument that § 14-40-303(b)(B)(i) required Bethel Heights to file a description and map of the annexed area and the correct election results with the county clerk and Secretary of State and the Town’s failure to have filed such matters with the Secretary of State tolled the thirty-day requirement to bring suit under § 14-40-304 above. Such argument, however, ignores the language in paragraph (B)(ii) of the same provision that a municipality’s annexation shall be effective thirty days following its filing the description and map of the annexed property with only the county clerk. Here, Bethel Heights undisputably filed a description and map with the county clerk, therefore making appellants’ tolling argument meritless. Concerning appellants’ argument that Bethel Heights had failed to file the correct election returns with the Secretary of State, we note that nothing in § 14-40-303 requires the filing of such returns with the Secretary of State. We would further mention that while such election returns are required to be certified by the election commission, that was done in this case. See Ark. Code Ann. § 7-5-801 (1987).

Appellants further argue that Bethel Heights failed to file a timely objection in this proceeding and the circuit court’s first annexation order entered in this cause should prevail. In reviewing the record, we find appellant Reeves did object to Bethel Heights’ intervention, alleging the Town was barred by laches. In his same pleading, Reeves also alleged that the City of Springdale must be made a party and that Reeves had not previously been made aware of Bethel Heights having annexed his property. Of course, Springdale was made a party below and remains one in this appeal. However, the laches issue was not tried below, nor did the trial court rule on the issues. Appellants had an obligation to develop and to obtain a ruling on this matter below. We will not consider such matters raised for the first time on appeal. Gatlin v. Gatlin, 306 Ark. 146, 811 S.W.2d 761 (1991). Regarding Reeves’ failure of notice issue contained in his response below, we note this question, too, was not presented to, or at least not ruled on, by the trial court. In any event, appellants do not assert this issue as one of their points for reversal. Based upon our review of the record, we conclude the trial court properly proceeded in this cause when it set aside its earlier annexation order and denied Reeves’ petition for annexation.

Finally, we are met with appellants’ argument which is somewhat related to their charge Bethel Heights was too late in challenging the circuit court’s first annexation order. Here, however, they suggest that regardless of the validity of Bethel Heights’ prior annexation of tract four and Reeves’ property therein, the law does not prohibit Reeves from voluntarily annexing the same land into the City of Springdale. As pointed out earlier, the circuit court held it could find no authority for allowing one city to annex to itself a tract of land already belonging to another city. We, too, find no such authority and appellants offer none. Certainly, the statutory provisions relied on by appellants do not specifically authorize one city to annex another’s land. Their failure to cite any authority in support of this argument merits its dismissal. McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991).

       We note that § 14-40-304 sets out the procedure to challenge the municipality’s failure to comply with the annexation requirements and § 7-5-801 establishes the procedure to contest the election returns, e.g., whether the county election commission properly deducted the Washington A precinct returns. Both of these provisions were met and the limitations provision under each has run.


text:
    SOUTH COUNTY, INC. v. FIRST WESTERN LOAN CO. & John Taylor Hampton
    92-357
    845 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Stephen M. Sharum and Mark E. Ford, for appellant.

      Karr & Hutchinson, by: Michael Stubblefield and William H. Sutton and William A. Waddell, Jr., for appellees.
   Tom Glaze, Justice.

Appellant, South County Inc., was formed in July 1985, to develop the South County Project. The South County Project was to be a mixed-use development in Greenwood, Arkansas. Appellant alleges that the appellees, First Western Loan Company and John Hampton, an officer of First Western, represented in January 1986, that they would provide the financing for the development. Appellant argues that relying on this representation, it expended a lot of time and money to further the development of the project. In July of 1986, the appellees advised the appellant that they would not fund the development of the project. Appellant was unable to obtain other financing, and the project failed. The appellees contend that they never issued a loan commitment and contend that First Western’s role was to help assemble the loan package and take the package to potential investors.

In July of 1988, appellant filed suit against the appellees alleging a tort action for negligent misrepresentation and constructive fraud. Appellant also alleged a cause of action for breach of contract against First Western. Appellant sought recovery for its damages as well as punitive damages. Uerling & Associates, a creditor of the appellant, filed a motion to intervene and a complaint in intervention on November 4, 1988. In this motion, Uerling contended that the appellant was indebted to it for engineering and surveying services conducted on the project in the amount of $46,210.69. On November 8, 1988, Uerling’s motion was granted without objection.

The appellees subsequently filed a motion for summary judgment. The trial court granted a partial summary judgment on October 9, 1991, on the tort causes of action and claim for punitive damages against appellees First Western and John Hampton. This completely eliminated appellee John Hampton from the lawsuit but left alive the appellant’s contract cause of action against First Western. In the order granting partial summary judgment, the trial judge stated that under ARCP Rule 54(b) there was no just reason for delay of the appeal of this decision. However, no mention was made of Uerling’s complaint in intervention. Appellant took a voluntary dismissal without prejudice of the breach of contract action against First Western, which was filed on October 31, 1991. Again, there was no dismissal of Uerling’s complaint in intervention.

Appellant appeals from the trial court’s granting of the appellees’ motion for a summary judgment on the tort cause of action.

Appellees first question whether appellant has complied with ARCP Rule 54(b). If appellees are correct, this court does not have jurisdiction and is prevented from reaching the merits of the appeal. We find the appellees’ contention has merit, therefore we must dismiss this appeal.

In its attempt to comply with Rule 54(b), the trial court made the following a part of its order granting appellees’ partial summary judgment:

The Plaintiff represents to the Court and the Court so finds that the granting of Partial Summary Judgment on the issues of negligent misrepresentation, constructive fraud and punitive damages substantially limits the claim of the Plaintiffs against First Western Loan Company and completely eliminates the separate Defendant, John Taylor Hampton, from the litigation of this cause of action. Because of the expense of litigation required to be expended by the Plaintiff, including expert witness fees, and since the Plaintiff has represented to the Court that an appeal of the Partial Summary Judgment against John Taylor Hampton will be appealed in any event, to prevent piecemeal appeals and duplicative litigation if this decision is reversed on appeal, this Court finds, pursuant to Arkansas Rules of Civil Procedure, Rule 54 (b) that there is no just reason for delay of the appeal of this decision. The Court expressly directs entry of the Summary Judgment as stated hereinabove and the Court further expressly authorizes and determines that it would be in the best interest of all parties that an appeal to this judgment be permitted by the Plaintiff and Defendants for the efficient administration of justice and to prevent duplicative trials and appeals.

The trial judge’s assessment makes no mention of the intervenor-Uerling’s claim. Nor does the record reflect what has happened to that claim. We have held that it is not enough to dismiss some of the parties, the trial court’s order must cover all the parties and all the claims in order to be an appealable order. Smith v. Leonard, 310 Ark. 782, 840 S.W.2d 167 (1992). In Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984), this court found the trial court failed to grant a summary judgment in the whole case, and therefore the court was in no position to predict what evidence will be presented at trial relevant to all claims for relief sought by the appellants. The Fratesi court concluded that if it allowed the interlocutory appeal on one issue and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. Here, Uerling’s claim is still pending below, and another appeal involving that matter could possibly be required regardless of how we decide appellant’s present appeal. Of even more importance, it appears the trial judge never considered Uerling’s claim when finding some likelihood of hardship or injustice existed which would be alleviated by an immediate appeal. See Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 726 S.W.2d 674 (1987). As we said in Hutchinson, our role on appeal is not to reweigh the equities or reassess the facts, but to make sure that the conclusions derived from those weighings and assessments are judiciously sound and supported by the record. While we commend the trial court’s efforts to present a record and order with specific facts to support its permitting a Rule 54(b) appeal, we conclude the trial court’s order falls short because it altogether omits any reference to or consideration of the Uerling claim.

Brown, J., dissents and would decide the case on the merits.

       Some mention of Uerling’s claim and its status was offered in oral argument, but because such matters are not a part of the record, we cannot consider them in this appeal.


author: Donald L. Corbin, Justice.

text:
    Sonya HOWARD and Morgan Cole v. CITY OF FORT SMITH
    92-362
    845 S.W.2d 497
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993

      Oscar Stilley, for appellants.

      Daily, West, Core, Coffman & Canfield, by: Jerry L. Canfield, for appellee.
   Donald L. Corbin, Justice.

Appellants and representative plaintiffs below, Sonya Howard and Morgan Cole, appeal an order of the Sebastian Chancery Court dismissing with prejudice their complaint against appellee, the City of Fort Smith. We find no error and affirm.

Appellants’ complaint asserted a class action claim challenging the city’s collection of the occupation tax authorized by Ark. Code Ann. § 26-77-102 (1987). Appellants moved for summary judgment stating the only issues to be determined were whether the proration provisions of the city’s occupation license and tax ordinance violated the Equal Protection and Due Process Clauses of the Arkansas and United States Constitutions. Appellee responded to appellants’ motion by agreeing there was no genuine issue of material fact and asking for summary judgment in its favor. Appellee’s response included an affidavit of the city’s tax collection supervisor.

The parties waived both a hearing on the motions and the right to present any further evidence and requested the chancellor to decide the matter on the record before him. The chancellor wrote a well-reasoned order finding that the proration provisions of the ordinance did not violate appellants’ rights of equal protection and due process. The chancellor denied appellants’ motion for summary judgment and dismissed their complaint with prejudice. On appeal, appellants assert as error the chancellor’s findings that neither their equal protection nor their due process rights were violated by the ordinance.

Fort Smith Ordinance No. 3230, as amended by Fort Smith Ordinance No 8-90, establishes the city’s occupation license and the procedure for the collection of the accompanying tax. The tax is $150.00 per year for professionals and $75.00 per year for other persons engaged in any trade, business, or vocation. The tax year is from April 1 to March 31. However, as a benefit to the taxpayer, the city allows the tax to be paid in two installments due April 1 and October 1.

The “proration provision” of Ordinance 3230 challenged in this appeal provides that:

Fractional parts of the last half of the tax year shall be charged on a pro rata basis from the date of issuance of the license and date of payment of tax to the last day of March, provided that no license shall be issued or tax paid for less than one-fourth of the annual license fee or tax amount. [Emphasis added.]

Fort Smith, Ark. OrdinanceNo. 3230, § 5 (January 7,1975). The ordinance does not provide for proration of the tax for licenses issued in the first half of the tax year.

Appellants argue the ordinance is constitutionally defective because it only allows for proration of the tax in the latter half of the tax year. Appellants contend that the proration provision results in the disparate treatment of similarly situated taxpayers. Specifically, appellants’ claim that persons purchasing a license on any date between April 1 and September 31 are denied equal protection of the laws and due process because they must pay the full amount of the tax for the respective period while those persons purchasing a license on any date between October 1 and March 31 must only pay an amount of tax prorated to the respective time remaining in the latter half of the tax year, subject to the one-fourth limitation as quoted above.

Appellee responds with the argument that the difference in treatment for proration purposes is rationally related to the objective of administrative efficiency. Bill Hon, appellee’s collection supervisor, stated in his affidavit that, based on his experience, it would be inefficient to collect the tax on a non-uniform tax year with each taxpayer having a different individual tax year. Hon also stated in his affidavit that the options provided in Section 5 of Ordinance 3230 for the issuance and payment of the annual license and tax in six-month periods and for the proration of the tax during the second half of the annual tax year are equally and uniformly applied to all taxpayers.

EQUAL PROTECTION

With respect to the equal protection claim, appellants contend Ordinance 3230 treats similarly situated taxpayers differently and therefore does not provide all taxpayers with equal protection of the laws. We disagree with the contention that the taxpayers receiving dissimilar treatment are similarly situated.

Regardless of any asserted disparate treatment, the rational basis test is the analysis applicable to an equal protection challenge of tax legislation. Streight v. Ragland, 280 Ark. 206, 655 S.W.2d 459 (1983). “Under the rationality standard of review, we must presume the legislation is constitutional, i.e., that it is rationally related to achieving a legitimate governmental objective.” Id. at 213, 655 S.W.2d at 463. The United States Supreme Court has stated that the power to discriminate in taxation is inherent in the power to tax, Leathers v. Medlock, _ U.S. __, 111 S. Ct. 1438 (1991), and that courts should defer to local legislative determinations as to the desirability of imposing discriminatory measures. City of New Orleans v. Dukes, 427 U.S. 297 (1976). Governing bodies have always been given wide discretion in selecting the subjects of taxation, particularly in the area of occupational taxes. New York Rapid Transit Corp. v. City of New York, 303 U.S. 573 (1938). Thus, in order for an appellate court to strike down a classification made by taxation legislation, the classification must be purely arbitrary and the discrimination must be invidious. Dukes, 427 U.S. 297.

Applying the foregoing rules of law, we have very recently stated that “ [i] f a taxation statute discriminates in favor of one class it is not determined to be arbitrary so long as the discrimination is based upon a reasonable distinction, and if there is any hypothesized set of facts to uphold a rational basis.” Medlock v. Leathers, 311 Ark. 175, 179, 842 S.W.2d 428, (1992). In the present case, the taxation legislation classifies taxpayers only according to the date on which they purchase their licenses. All taxpayers purchasing licenses on the same date are treated similarly. To achieve the objective of efficiency, the establishment of a uniform tax year is certainly rational. In addition, it is rational for the city to conclude that those persons purchasing licenses for the first time in the first half of the tax year will receive a reasonable value for their tax dollar through their receipt of a license valid for more than half the year and therefore should not be allowed proration. Those persons purchasing licenses for the first time in the latter half of the tax year will be receiving a license valid for less than half of the tax year; thus, it is rational for the city to conclude that these purchasers would not receive a reasonable value for their tax dollar unless the tax was prorated.

In short, we disagree with appellants’ contention that those taxpayers purchasing licenses in the first half of the tax year are similarly situated to those taxpayers purchasing licenses in the second half of the tax year. The latter group is not receiving a license valid for more than half a year; thus, the city could rationally conclude that they are entitled to proration of the tax. Any difference in the treatment of the taxpayers is based on a rational distinction, is not arbitrary, and does not result in invidious discrimination.

As the party attacking the taxation legislation, it is appellant’s burden to negate very conceivable basis which might support it. Madden v. Kentucky, 309 U.S. 83 (1940). The chancellor determined that appellants had not met their burden of negating the efficiency theory advanced by appellee. We agree with the chancellor. Appellants have not met their burden of showing the lack of a rational basis for the ordinance.

DUE PROCESS

With respect to taxation legislation, the due process analysis is the same as the equal protection analysis. See Johnson v. Sunray Services, Inc., 306 Ark. 497, 816 S.W.2d 582 (1991). The chancellor likewise concluded that appellants had not met their burden of proving any due process violation. We agree with the chancellor.

The judgment is affirmed.

Brown, J., concurs with the result.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice, Robert H. Dudley, Justice,

text:
    STATE of Arkansas v. Jerry POST, David Wyatt, Independence County Judge; Orville Arms, Paul Buchanan, Bill Cash, Jim Darmstaedter, Bobby Galloway, Sue Hurley, Jim Kemp, Conway Lawrence, Earvin Moser, Joe Walls, Tom Ed Woodruff, Quorum Court Members Comprising the Quorum Court of Independence County
    92-787
    845 S.W.2d 487
    Supreme Court of Arkansas
    Opinion delivered January 19, 1993
    [Rehearing denied February 22, 1993.]

      Winston Bryant, Att’y Gen., by: Kyle R. Wilson, Asst. Att’y Gen., for appellant.

      Adams & Nichols, by: Donald J. Adams and Tom Allen, for appellee Oscar Jones.

      Skokos, Coleman, & Rainwater, P.A., by: Michael R. Rainwater, for appellee Independence County.
   Donald L. Corbin, Justice.

Oscar Jones and Jerry Post were appointed counsel for William Thomas Reager, an indigent charged with capital murder. As a result of their representation, Mr. Reager was found not guilty and the charges were dismissed. This appeal concerns the allocation of responsibility for Mr. Jones’ fees and expenses between the state and Independence County. Mr. Post’s fees and expenses are not before us because the county failed to appeal in a timely manner. In response to Mr. Jones’ Motion for Certification of Attorney’s Fees and Expenses, Special Judge Watson Villines certified an award to Mr. Jones of $22,986.00 in attorney’s fees as just compensation and $602.85 for reimbursable expenses. The propriety of the award has not been challenged. Judge Villines also determined that the county was liable for payment of $450.00 of Mr. Jones’ award and the state was liable for the remainder under Ark. Code Ann. § 16-92-108 (1987) and § 14-20-102 (Supp. 1991). On appeal, the state argues that under Ark. Code Ann. § 14-20-102, the county is responsible for payment of all indigent defense fees. Alternatively, the state argues that the state should, at most, be required to pay six hundred and fifty dollars ($650.00) under Ark. Code Ann. § 16-92-108. According to the state, our decision in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991), made the meaning and application of section 16-92-108(c) ambiguous and we should therefore interpret section 16-92-108 in accordance with the intent of the legislature. The state contends that it has been the longstanding practice of the legislature to require the counties to bear the burden of financing the administration of criminal justice in the state. According to the state, by enacting section 16-92-108 the legislative intent was for the state to assist the counties, leaving primary financial responsibility with the counties, in cases where the indigent was charged with capital murder or murder in the first degree, but even then the intent was not for the state to ever pay more than six hundred and fifty dollars ($650.00) in any one case.

This case requires us to interpret section 16-92-108, and section 14-20-102. Our jurisdiction is therefore proper pursuant to Ark. Sup. Ct. R. 29(1)(c).

Section 16-92-108 provides:

(a) Whenever legal counsel is appointed by any court of this state to represent indigent persons accused of crimes, whether misdemeanors or felonies, the court shall determine the amount of the fee to be paid to the attorney and an amount for a reasonable and adequate investigation of the charges made against the indigent and shall issue an order for the payment thereof.
(b) (1) The amount allowed for investigation expenses shall not exceed one hundred dollars ($100), and the amount of the attorney’s fee shall be not less than twenty-five dollars ($25.00) nor more than three hundred fifty dollars ($350.00).
(2) The amount of attorney’s fees for attorneys who defend indigents accused of capital murder or murder in the first degree shall be not more than one thousand dollars ($1,000).
(3) The attorney’s fees provided for by this section shall be based upon the experience of the attorney and the time and effort devoted by him in the preparation and trial of the indigent, commensurate with fees paid other attorneys in the community for similar services.
(c) (1) Upon being furnished an order of the court fixing the fees, the quorum court of the county in which the indigent was charged shall appropriate from the county general fund adequate funds to pay the fees, not to exceed the amount of three hundred fifty dollars ($350) for the attorney’s fees nor one hundred dollars ($100) for investígation expenses, and the county treasurer shall disburse the fees to the appointed attorney.
(2) The balance not paid by the counties shall be paid by the state from the Trial Expense Assistance Fund created by § 16-92-109.
(d) An attorney shall not be so appointed by a court if the attorney certifies to the court, in writing, that he or she has not attended or taken a prescribed course in criminal law in an accredited school of law within twenty-five (25) years prior to the date of appointment, that the attorney does not hold himself or herself out to the public as a criminal lawyer, and that he or she does not regularly engage in the practice of criminal law.

Section 14-20-102 provides:

(a)(1) The quorum court of any county included within the judicial districts of the State of Arkansas, by appropriate county legislation, may provide for the creation of a fund to be used for the purpose of paying reasonable and necessary costs incurred in the defense of indigent persons accused of criminal offenses and in the defense of indigent persons against whom involuntary commitment procedures for insanity or alcoholism have been brought, and for representation in civil and criminal matters of persons deemed incompetent by the court due to minority or mental incapacity, which have been brought in any circuit courts, chancery courts, juvenile courts, probate courts, city or county division of municipal courts including, but not limited to, investigative expenses, expert witness fees, and legal fees.
(2) Any municipal body in a county where the quorum court has not created such a fund applicable to the city division of the municipal court may provide for the creation of a fund to be used in the city division of the municipal court.
(3) Where there are adequate unappropriated moneys in this fund, the quorum court may also provide for the use of the funds for the purpose of defraying the cost of the juvenile division of chancery court.
(4) Where there are adequate unappropriated moneys in this fund, the quorum court may also provide for the use of the funds for the purpose of defraying the cost of the medical and dental costs incurred by the county for indigent defendants incarcerated in the county jail.
(b) (1) [As amended by Acts 1991, No. 1003, § 1.] Any quorum court desiring to establish such a fund shall have the authority to provide for the payment of a fee, not to exceed the sum of five dollars ($5.00), to be taxed as costs in each matter, civil or criminal, filed in any circuit, chancery, probate, city or county division municipal court within the county. However, no such fees shall be taxed as costs in any action filed in any small claims court.
(2) The quorum court is authorized to supplement the fund by additional appropriations from the county general fund, and expenditures from such fund shall be made in the manner and amounts prescribed by the quorum court desiring to enact such legislation.
(c) The provisions of § 16-92-108 and other laws relating to the amount of attorney fees and costs that may be paid in the defense of indigents charged with criminal offenses and in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any county in which the quorum court establishes a fund under this section and levies additional costs or fees to finance such fund.
(d) In any county where a public defender commission has been established under §§ 16-87-101 — 16-87-111, the amount to be paid for attorney fees, investigative costs, and other costs under subdivision (a)(1) of this section shall be determined in a manner prescribed by the quorum court acting with the advisory resolution of the public defender commission.
(e) The provisions of this section and § 16-92-108 relating to the amount or payment of attorney fees and costs that may be paid in the defense of persons against whom involuntary commitment proceedings are sought for insanity or alcoholism shall not be applicable in any instance in which the State of Arkansas, acting through its administrative agencies, departments, or divisions, provides for payment of attorney fees or costs which would otherwise be paid by the county.

We find that we must first address the effect of our decision in Arnold v. Kemp on section 16-92-108 before we can decide whether Independence County is liable for payment of the attorney fees since it has established an Indigent Defense Fund pursuant to section 14-20-102.

In Kemp, we declared the fee caps contained in section 16-92-108 unconstitutional. Prior to Kemp, section 16-92-108(b) provided that investigation expenses could “not exceed one hundred dollars ($100)” and attorney’s fees were limited to “not less than twenty-five dollars ($25.00) nor more than three hundred fifty dollars ($350)”, except in cases where the defendant was accused of capital murder or murder in the first degree, where the attorney’s fees was limited to “not more than one thousand dollars ($1,000).” We did not address the provisions of section 16-92-108 concerning responsibility for payment of the fees in Kemp. Under section 16-92-108(c)(l), the county is required to pay up to three hundred and fifty dollars ($350.00) for attorneys fees and one hundred dollars ($100.00) for investigation expenses out of its county general fund. The balance is paid by the state from the Trial Expense Assistance Fund. Ark. Code Ann. § 16-92-108(c)(2). “[I]t is well settled that where a statute or code provision is unconstitutional in part, the valid portion of the act will be sustained if complete in itself and capable of execution in accordance with apparent legislative intent.” Hutton v. Savage, 298 Ark. 256, 266, 769 S.W.2d 394, 399 (1989). In Kemp, we indicated that only the fee cap sections of section 16-92-108 were unconstitutional. The other sections were not affected by our decision. After further consideration, we find that our decision in Kemp that the fee caps contained in section 16-92-108 are unconstitutional requires us to invalidate the entire statute because the sections of the statute are not severable. It was clearly the intent of the legislature to enact the statute as a whole. The sections of the statute are interwoven and the entire statute revolved around the fee caps. Wenderoth v. City of Ft. Smith, 251 Ark. 342, 472 S.W.2d 74 (1971). Our decision in Kemp eliminating the fee caps contained in the statute requires us to invalidate the entire statute because the fee caps were an integral part of the system set out by the legislature in the statute to allocate responsibility between the county and the state for payment of defense attorney fees.

Since we find that section 16-92-108 must be invalidated, we next turn to section 14-20-102 to see whether it provides any guidance. Independence County has established a fund pursuant to section 14-20-102 to help pay for the costs incurred in the defense of indigent persons. Because Independence County has established a fund, the state contends it is not responsible for payment of any of the attorney’s fees or investigation costs at issue in this case. Section 14-20-102(a) authorizes a county to establish an Indigents’ Defense Fund. Section 14-20- 102(b) governs how an Indigents’ Defense Fund is to be funded and how expenditures are to be made once such a fund is established. Section 14-20-102(b) provides:

(b)(1) Any quorum court desiring to establish such a fund shall have the authority to provide for the payment of a fee, not to exceed the sum of five dollars ($5.00), to be taxed as costs in each matter, civil or criminal, filed in any circuit, chancery, probate, city or county division municipal court within the county. However, no such fees shall be taxed as costs in any action filed in any small claims court.
(2) The quorum court is authorized to supplement the fund by additional appropriations from the county general fund, and expenditures from such fund shall be made in the manner and amounts prescribed by the quorum court desiring to enact such legislation.

Therefore, according to section 14-20-102(b)(2), we look to see what procedure the Quorum Court of Independence County has established for making expenditures from its funds to determine if Independence County must pay the fees and expenses at issue. The Quorum Court of Independence County enacted Ordinance No. 419-86, which established Independence County’s Indigents’ Defense Costs Fund. This Ordinance contains the funding and expenditure procedures for the Indigents’ Defense Fund. This Ordinance provides:

SECTION 1. Under the provisions of Act 695 of the 1983 Arkansas Legislative Session, there is hereby authorized an Indi gent s’ Defense Costs Fund which will be used to defray the allowable costs incurred in the defense and trial of indigents in this county and for indigents in this County against whom involuntary commitments for insanity or alcoholism are sought.
SECTION 2. A. Effective on passage and approval of this Ordinance, the Chancery, Circuit and Probate Clerks are hereby authorized and directed to add the sum of Five Dollars ($5.00) to the filing fees and costs for all cases, civil or criminal, filed in these Courts.
B. Fees so collected are to be paid to the Independence County Treasurer by the twenty-fifth day of the following month and the Treasurer will create and maintain an account with these fees which will be entitled the Indigents’ Defense Costs Fund.
C. All payments out of the Indigents’ Defense Costs Fund will be for the payment of indigent expenses to include, but not limited to, attorney’s fees, expert witnesses fees, investigation and other reasonably necessary costs incurred in the defense and trial of indigent persons in any Court in which the fees listed above are collectable.
SECTION 3. A. Attorneys appointed to represent indigents are required to keep an accurate, detailed accounting of the amount of time and nature of their services and their expenses for each case with expenses being defined as meaning any expenditure other than witness fees and investigator fees.
B. Prior to obtaining the services of any investigator or expert witness, the attorney will secure the written approval of their services and fees from the Court in which the matter is pending.
C. At the conclusion of the case involving the indigent, or at such other times as shall be appropriate, the attorney will submit his time and expense schedule along with the expenses incurred by any expert witness or investigator to the Court hearing the matter.
SECTION 4. A. The amount allowed for investigation expenses and for expert witness fees together shall not exceed One Hundred Dollars ($100.00) and the amount of the attorney’s fees and expenses shall not be less than Twenty-Five Dollars ($25.00) nor more than Three Hundred and Fifty Dollars ($350.00), based upon the experience of the attorney and the time and effort devoted and the expenses incurred by him in the preparation and trial of the indigent.
B. In any event, no more than Four Hundred and Fifty Dollars ($450.00) for all fees and expenses and costs shall be paid from the Indigents’ Defense Costs Fund, for any single indigent on any one (1) case pending against such indigent person.
C. No costs incurred prior to the passage of this ordinance shall be paid from the Indigents’ Defense Costs Fund.
SECTION 5. Upon being presented with such schedule as set out in Section 3(C) above, the Court shall determine the amount of fee and expenses to be paid to the attorney and an amount for a reasonable and adequate investigation of charges made against the indigent and a reasonable amount for expert witness fee, and issue' an order for the payment thereof.
SECTION 6. Upon being furnished with copy of the Court’s order for payment of the aforementioned fees and expenses, the County Judge shall review the order and, subject to his approval, the County Treasurer shall disburse such fees to the appropriate parties.

The provisions of the fund limit the amounts that may be paid for any single indigent on any one (1) case to four hundred and fifty dollars ($450.00). This limitation is invalid under our decision in Kemp. The provisions of Independence County Ordinance No. 419-86 concerning the payment of attorney’s fees and costs for indigent defendants are substantially similar to the provisions providing for payment of indigent defense fees and costs contained in section 16-92-108. The fee caps contained in Independence County Ordinance No. 419-86 are an integral part of the Ordinance just as the fees caps contained in Ark. Code Ann. § 16-92-108 were an integral part of that statute. Having previously determined that the invalidation of the fee caps in section 16-92-108 by Kemp required that we invalidate the entire statute since the fee caps were an integral part of the statute and were not severable, we must similarly determine that our invalidation of the fee caps contained in Independence County Ordinance No. 419-86 requires us to invalidate the entire ordinance.

This leaves us with no provisions requiring the county to pay defense attorney fees of counsel appointed to defend indigent defendants. In the absence of statutory requirements we must look to the Constitution of the United States and the State of Arkansas to determine who is responsible for payment of indigent defense fees in Arkansas. The United States Constitution mandates that states appoint counsel for indigent defendants. Gideon v. Wainwright, 372 U.S. 335 (1963). The Constitution of the State of Arkansas requires the court to appoint counsel for indigent defendants. Therman v. State, 205 Ark. 376, 168 S.W.2d 833 (1943); Ark. Const, art. II, § 10. While attorneys in Arkansas have been appointed to defend indigent defendants since our current constitution was adopted in 1874, they were not compensated for their services to indigent defendants until 1953. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978). At that time, the legislature delegated the responsibility of payment of indigent defense fees to the counties by statute. See Ark. Stat. Ann. § 43-2415, -2416 (Repl. 1964). Since that time, several statutes have been enacted by the legislature requiring the counties to pay indigent defense fees. It was not until 1985 that the legislature placed partial responsibility for payment of indigent defense fees on the state. Ark. Code Ann. § 16-92-108. But, now that we have determined that our decision in Kemp requires us to invalidate section 16-92-108 and Independence County’s Indigents’ Defense Costs Fund, there remains no statutory authority for placing the payment of Mr. Jones’ fees 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 no longer is a statute delegating this duty to Independence County, the state is responsible for payment of Mr. Jones’ fees and expenses.

The portion of the trial court’s order assessing responsibility for the payment of $450.00 of Mr. Jones’ award to the county and the remainder to the state is modified to place full responsibility for payment of the award to Mr. Jones on the state.

Affirmed as modified and remanded for further proceedings consistent with this opinion.

Holt, C.J. and Brown, J., concur.

Dudley, Hays, and Newbern, JJ., dissent.

Robert L. Brown, Justice,

concurring. Though I agree with the majority that the responsibility for payment of legal fees in this capital murder case rests with the state, I do not agree that this court struck down the fee cap statute, Ark. Code Ann. § lb-92-108 (1987), as unconstitutional on its face in Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). On the contrary, in Kemp we held: “[W]e must find that section 16-92-108 does not pass constitutional muster, as applied.” 306 Ark. at 304, 813 S.W.2d at 776. (Emphasis added.)

The fee cap statute is also unconstitutional as applied to the facts of the present case for the same reasons as those set forth in Arnold v. Kemp, supra. And the Independence County Ordinance adopted pursuant to Ark. Code Ann. § 14-20-102 (Supp. 1991) is inoperable in this case because it contemplates payment of capped legal fees under § 16-92-108. In the absence of clear direction from the General Assembly as to which political entity, state or county, is liable for legal fees under these circumstances, I turn to the State Constitution for guidance.

There is no question that the crime committed in this instance is a crime against the state and that the right to counsel is provided by the State Constitution in Article 2, Section 10, as interpreted, and not because of some conferment of rights by Independence County. With that right goes a price tag. I would assess payment of the price for legal services against the State of Arkansas because that is where the right has its origin, and there is no effective legislative pronouncement to the contrary.

Holt, C.J., joins.

Robert H. Dudley, Justice,

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.