Ex parte Thompson

• Decision Date: 20 April 1908
• Citation: 109 S.W. 1171,86 Ark. 69
• Parties: EX PARTE THOMPSON
• Court: Arkansas Supreme Court

109 S.W. 1171

86 Ark. 69

EX PARTE THOMPSON

Supreme Court of Arkansas

April 20, 1908

Certiorari to Sebastian Chancery Court; J. Virgil Bourland Chancellor; affirmed.

STATEMENT BY THE COURT.

On the 6th of February, 1908, James P. Barry filed an affidavit before John Danner, a justice of the peace of Upper Township Sebastian County, alleging that Clint Thompson had, on the 5th of February, committed the crime of disturbing the peace. A warrant for his arrest was issued to the constable of the township, and he was arrested, and his trial set for February 7th. On the 7th the case was tried before the justice on a plea of not guilty, and a plea to the jurisdiction of the court, and the justice made the following findings:

"That said offense was committed in that part of the said State and added to said State by an act of Congress approved February 11, 1905, and by the act of Legislature of said State of Arkansas entitled 'An act extending the western boundary of the State of Arkansas over a strip of the Choctaw Nation between the Arkansas line and Poteau River adjacent to Ft. Smith, approved February 16 1905.' The court doth find that said offense was committed, and said strip is within the jurisdiction of said court; therefore, the plea of the defendant to the jurisdiction of the court is overruled by the court, and the court, being well and sufficiently advised as to all the matters of law and facts therein, doth find the said defendant guilty, and doth assess a fine of $ 55."

Following which is a judgment in ordinary form for the fine and costs, and that the defendant be committed to the county jail until the above fine and costs are paid according to law. A commitment to the jailer of Sebastian County was issued, and Clint Thompson was imprisoned in the jail of said county. On the same day of his conviction, Thompson filed a petition for habeas corpus before the Hon. J. V. Bourland, chancellor, in which he set forth that he was illegally restrained of his liberty by the jailer of Sebastian County, under said judgment and commitment, which judgment he claimed was void on the ground that the justice of Upper Township was without jurisdiction over the place where the offense was alleged to have been committed, said place not being a part of the State of Arkansas; the allegation being that the act of the General Assembly of Arkansas referred to in the judgment was unconstitutional, and that the act of Congress referred to had been repealed. This petition was demurred to by the attorney for the jailer, upon the ground that the court was without jurisdiction to try the matter presented, and that the petition did not state facts sufficient to constitute a cause of action. The cause came on to be heard before the chancellor upon the petition and demurrer, and an agreed statement of facts which was as follows:

"It is agreed by counsel in the above case that the acts for which petitioner was convicted was committed on a strip of land adjacent to the city of Ft. Smith, Arkansas, and lying between the original western line of said State and the Arkansas and Poteau rivers, and is included and embraced in the lands described in the act of Congress of February 11, 1905, and the act of the General Assembly of Arkansas of February 16, 1905.

"Tom W. Neal,

"T. S. Osborne,

"Attorneys for Petitioner.

"W. H. Rector,

"Asst. Prosecuting Atty. for

12th District of Arkansas.

The chancellor denied the writ, and Thompson seeks to reverse his action by certiorari.

Judgment affirmed.

T. S. Osborne and Tom W. Neal, for petitioner.

1. The writ of certiorari is the proper procedure in this case. 45 Ark. 158; 48 Ark. 283; 81 Ark. 504.

2. The strip of land where the offense is alleged to have been committed is not, in contemplation of law, a part of the State of Arkansas. Art 1, Const. (Ark.) 1836; art. 1, Const. (Ark.) 1861; Id. 1864; Id. 1868; Id. 1874; 5 U. S. Stat. at Large, 50-52; 7 Id. 311; Id. 234; 30 Id. 497, § 9; 33 Id. 714. The act of Feb. 16, 1905 (Acts 1905, p. 124, § 1) was void, the Constitution of 1874 having fixed the permanent boundaries of the State. Art. 1, Const. 1874; 8 Barb. (N. Y.) 186; 20 N.Y.S. 157; 65 Hun, 194; 6 Words & Phrases, 5310; 1 Bryce, American Commonwealth, 2 Ed., 422; 6 Am. & Eng. Enc. of L. 890; 1 Ark. 27; 2 Dallas (U. S.) 204.

3. The criminal laws of the State can have no extra-territorial force. 5 Ark. 409; 17 Ark. 561; 30 Ark. 41; 22 U.S. 362.

4. The writ of habeas corpus was the proper remedy. Kirby's Digest, § 3864; Black's Const. Law, 51, § 22; 75 Ark. 542; 45 Ark. 283; 48 Ark. 158; 100 U.S. 375; 1 Bishop's New Crim. Law, § 1410, par. 3 and 7; Church on Habeas Corpus, 2 Ed. § 83; 9 Am. & Eng. Enc. of L. 213, et seq.; 12 Wall. (U. S.) 458; 3 Dallas (U. S.) 411; 40 Ark. 501; 26 Ark. 545.

William F. Kirby, Attorney General, and W. H. Rector, for respondent.

1. The object of the writ of habeas corpus is to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. 48 Ark. 289. This writ can not be made a substitute for quo warranto, writ of error or appeal. 100 U.S. 375; 110 U.S. 651. The justice of the peace was at least acting with de facto jurisdiction; and, keeping in mind the distinction between acts creating offenses and acts granting jurisdiction or certain powers to courts, the question of constitutionality can not be raised in this proceeding, but only by the commonwealth. 29 Pa. 129; 15 Am. & Eng. Enc. of L. 155; Church on Habeas Corpus, § 256 et seq.; 49 N.J. 326; 16 Ia. 369; 48 Ark. 289; 13 Col. 525; 173 U.S. 453; Chase's Dec. 364; 122 Mass. 445; 139 U.S. 504; 6 S.Ct. 1121; 76 Wis. 357; 76 Wis. 365; 62 Wis. 154; 5 F. 899; 87 Am. St. Rep. 198; 21 O. St. 610; 24 Wend. 539; 36 Conn. 422; 14 Wis. 164; 17 Wis. 521; 49 Ark. 443; 4 Ark. 582.

2. The fixing of boundaries is a political and not a judicial function. 2 Pet. 254; Id. 710; 5 Pet. 46; 12 Pet. 511; Id. 520; 1 How. 303; 11 Wall. 611; 10 Otto 490; 72 F. 1006; 11 N.H. 17; 61 Me. 184; 3 R. I. 127; 58 Tex. 228; 44 Tex. 393; 3 Dana 489; 23 Minn. 40; 64 Tex. 233; 143 U.S. 638. If the act of the Legislature in question is contrary to the State Consittution, which is not conceded, then the State Constitution is itself repugnant to the Federal Constitution. Compare art. 1, Const. 1874 with art. 4, § 3, Fed. Const.; art. 6, § 2, Fed. Const.

HILL, C. J. MCCULLOCH, J., dissenting. Mr. Justice BATTLE concurs.

OPINION

HILL, C. J., (after stating the facts.)

Petitioner seeks through a writ of certiorari to reverse a decision of a chancellor denying him the writ of habeas corpus. A judgment of a justice of the peace of Upper Township of Sebastian County was sought to be declared void upon the ground that the justice had found petitioner guilty of a crime committed without his jurisdiction. It appears from the finding of fact inserted by the justice in his judgment and in the agreed statement of fact made by counsel on the trial before the chancellor that the jurisdiction of the justice over the place where the crime was committed depended upon the constitutionality of an act of the General Assembly of February 16, 1905, entitled "An act extending the western boundary of the State of Arkansas over a strip of the Choctaw Nation between Arkansas State line and Poteau River adjacent to Fort Smith," Acts of 1905, p. 124; the contention being that said act is in conflict with article 1 of the Constitution of 1874, which reads as follows: "We do declare and establish, ratify and confirm the following as the permanent boundaries of the State of Arkansas," therein describing the boundaries.

Before the court should decide this question, there should be a record here that properly calls for a decision of it. It has been earnestly insisted that the judgment upon its fact shows that the justice was without jurisdiction, and that the judgment, being void upon its face, can be attacked by habeas corpus. This contention is bottomed upon the theory that the act of the General Assembly and the act of Congress are without effect. Does this record call for a decision of this question?

Sec 6213 of Kirby's Digest, provides: "Upon trials of questions of fact by the court, it shall state in writing the conclusions of fact found separately from the conclusions of law." When the circuit court tries facts without a jury, it has frequently been decided that its findings of fact, made pursuant to this statute and recited in the judgment, present questions of law for review here without the aid of a bill of exceptions. On such appeal the question is, accepting the facts as found, does the judgment rendered logically follow? Smith v. Hollis, 46 Ark. 17; Bradley v. Harkey, 59 Ark. 178, 26 S.W. 827; Springfield F. & M. Ins. Co. v. Hamby, 65 Ark. 14, 45 S.W. 472; Webb v. Kelsey, 66 Ark. 180, 49 S.W. 819. No case is found where a finding of fact by a justice of the peace, incorporated into his judgment, has been held to have the same effect as the finding of fact by the circuit court incorporated in a judgment in order that it may be reviewed on appeal. In fact, from the very nature of it, this section and such practice can not apply to judgments of justices of the peace. On appeal from them, the trials are de novo and not upon error, and no reasons exist for the preservation of their findings of fact in the judgment or by bill of exception, and it is unauthorized by law and contrary to usual and orderly practice. When a justice does make such unauthorized recitals, they have no probative force. The principle governing such unauthorized recitals is stated in State v. Johnson, 38 Ark. 568: "Evidence can not be imported into the record of the judgment. Its recitals of what appeared to the satisfaction of the court...