(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; Springfield F. & M. Ins. Co. v. Hamby, 65 Ark. 14; Webb v. Kelsey, 66 Ark. 180. 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 stated only the conclusion of the court upon the evidence, and is merely explanatory of the grounds of the judgment or order.” This was said of a judgment of a circuit court into which was attempted to be imported the evidence upon which the judgment rested. A fortiori, the judgment of a justice of the peace can not be strengthened or weakened by importing into it'the evidence upon which the justice acted.
The principle announced in State v. Johnson is well supported by prior and subsequent decisions of this court; Cox v. Garvin, 6 Ark. 431; Touchstone v. Harris, 22 Ark. 365; Hall v. Bonville, 36 Ark. 491; Smith v. Hollis, 46 Ark. 17; Bradley v. Harkey, 59 Ark. 179.
Therefore, in considering the record, the court should not consider any evidence imported into the judgment of the justice in the shape of findings of fact as the basis of his decision. Disregarding the justice’s finding of fact, then, the evidence relied upon is found in the pleadings and agreed statement of counsel.
In the case of Powell v. Hays, 83 Ark. 448, the court decided an act of a co-ordinate department of the government to be void upon the allegations in the petition and response. These allegations, however, were sustained by the oral testimony of distinguished witnesses in which there was no conflict as to essential facts, and also by record evidence from the- office of the Secretary of State.
On rehearing, the attention of the court was sharply drawn to the necessity of determining whether a statute is law or not law according to the very truth of the case, and not according to shifting circumstances which might in one instance make a statute a law’ and in another instance make the same act not a law. Although the court had considered that matter, and had found that the facts alleged in the pleadings were proved to be the truth, yet, realizing the force of the suggestions made, the court decided not to rest the decision- upon admissions in pleadings alone, although so strongly fortified, and placed the ground of decision upon the record evidence also, in order that a precedent be not made of deciding the validity of statutes upon agreed statements or admissions in pleadings.
In that case the -court fully approved the principles announced in Chicago & G. T. Ry. Co. v. Wellman, 143 U. S. 339, the following extracts from which are pertinent here: “Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against, another, there is presented a question involving the validity of an act of any Legislature, State or Federal, and the decision necessarily rests on the competency of the Legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is t'he ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. * * * We do not mean to insinuate aught against the actual management of the affairs of this company. The silence' of the record gives us no information, and we have no knowledge outside thereof, and no suspicion of wrong. Our suggestion is only to indicate how easily courts may be misled into doing grievous wrong to the public, and how careful they should be not to declare legislative acts unconstitutional upon agreed and general statements, and without the fullest disclosure of all material facts.” See La. & Ark. Ry. Co. v. State, 85 Ark. 12.
The application of these principles to the case at bar makes it plain that it is not the duty of the court in this proceeding to determine so grave a question as the constitutionality of acts of the Legislature or Congress, fixing or attempting to fix the boundary line of the State, upon an agreed statement of facts, however sincerely and honestly made.
The judgment denying the writ of habeas corpus is affirmed.