PEOPLE OF THE STATE OF NEW YORK EX REL. ABRAHAM KOPEL, Plff. in Err., v. THEODORE A. BINGHAM, Police Commissioner of the City of New York.

211 U.S. 468 (29 S.Ct. 190, 53 L.Ed. 286)

PEOPLE OF THE STATE OF NEW YORK EX REL. ABRAHAM KOPEL, Plff. in Err., v. THEODORE A. BINGHAM, Police Commissioner of the City of New York.

No. 167.

Argued: October 26, 1908.

Decided: January 4, 1909.

Mr. Alfred R. Page for plaintiff in error.

Argument of Counsel from pages 469-470 intentionally omitted

Messrs. Robert C. Taylor and Robert S. Johnstone for defendant in error.

Argument of Counsel from page 471 intentionally omitted

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Mr. Chief Justice Fuller delivered the opinion of the court:

September 11, 1906, Kopel was taken into custody by defendant in error, Bingham, who is the police commissioner of the city of New York. The arrest was made in pursuance of a rendition warrant issued by the governor of the state of New York, which recited that Kopel was charged with having committed embezzlement in Porto Rico; that he had fled therefrom and taken refuge in New York; and that his return had been lawfully demanded by the governor of Porto Rico.

Kopel thereupon sued out a writ of habeas corpus from the supreme court of the state of New York. Bingham made return to the writ, and set up the rendition warrant as his authority for detaining the prisoner. Kopel demurred to the return as insufficient in law, and that the governor's warrant had been issued without authority, etc. The matter coming on at special term before Truax, J., the demurrer was overruled and the writ dismissed, and the police commissioner directed to deliver Kopel to the agent of Porto Rico, to be conveyed back to Porto Rico.

From this order Kopel appealed to the appellate division of the supreme court in the first department, and the order of Judge Truax was unanimously affirmed.

Kopel then appealed to the court of appeals, which affirmed the order below. The record was remitted to the supreme court, to be proceeded upon according to law, and thereupon the order of the court of appeals was made the order of the supreme court, whereby it was ordered that the original order of the supreme court, which had been affirmed, should be enforced and carried into execution and effect. To this order, upon the remittitur, this writ of error is addressed.

The questions involved are whether the governor of Porto Rico had power and authority to make a requisition upon the governor of the state of New York for the arrest and surrender of the fugitive criminal of Porto Rico who had taken refuge in the state of New York, and whether the governor of the state of New York had power and authority to honor such requisition and to issue his rendition warrant for the arrest and surrender of such fugitive.

Section 5278 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 3597) reads as follows:

'Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crimes, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear.'

By § 827 of the Code of Criminal Procedure of New York it is provided:

'It shall be the duty of the governor, in all cases where, by virtue of a requisition made upon him by the governor of another state or territory, any citizen, inhabitant, or temporary resident of this state is to be arrested as a fugitive from justice . . . to issue and transmit a warrant for such purpose to the sheriff of the proper county . . . (except in the city and county of New York, where such warrant shall only be issued to the superintendent or any inspector of police) . . . Before any officer to whom such warrant shall be directed or intrusted shall deliver the person arrested into the custody of the agent or agents named in the warrant of the governor of this state, such officer must, unless the same be waived, as hereinafter stated, take the prisoner or prisoners before a judge of the supreme court or a county judge, who shall, in open court, if in session, otherwise at chambers, inform the prisoner or prisoners of the cause of his or their arrest,' and that be or they may have a writ of habeas corpus upon filing an affidavit to the effect that he or they are not the person or persons mentioned in said requisition.

By § 14 of the organic act of Porto Rico, commonly called the Foraker act, it is provided that 'the statutory laws of the United States not locally inapplicable, except as hereinbefore or hereinafter otherwise provided, shall have the same force and effect in Porto Rico as in the United States, except the internal revenue laws,' etc. 31 Stat. at L. 80, chap. 191.

Section 17 provides that the governor 'shall, at all times, faithfully execute the laws, and he shall in that behalf have all the powers of governors of the territories of the United States that are not locally inapplicable.'

Among the powers of governors of territories of the United States is the authority to demand the rendition of fugitives from justice under § 5278 of the Revised Statutes, and we concur with the courts below in the conclusion that the governor of Porto Rico has precisely the same power as that possessed by the governor of any organized territory to issue a requisition for the return of a fugitive criminal. People ex rel. Kopel v. Bingham, 189 N. Y. 124, 81 N. E. 773, affirming 117 App. Div. 411, 102 N. Y. Supp. 878. It was so held by Judge Hough, of the district court of the United States for the southern district of New York, in passing upon a similar application by the same relator. Re Kopel, 148 Fed. 505.

Subdivision 2 of § 2 of article 4 of the Federal Constitution refers in terms to the states only, but the act of Congress of February 12, 1793 1 Stat. at L. 302, chap. 7, U. S. Comp. Stat. 1901, p. 3597, carried forward into § 5278 of the Revised Statutes, made provision for the demand and surrender of fugitives by the governors of the territories as well as of the states; and it was long ago held that the power to extradite fugitive criminals, as between state and territory, is as complete as between one state and another. Ex parte Reggel, 114 U. S. 642, 650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep. 1148. If § 5278 does not apply, no other statute does. And as to §§ 14 and 17 of the Foraker act, no contention is made that they are locally inapplicable, except as it is argued that § 5278 of the Revised Statutes is not applicable at all, because Porto Rico is not a 'territory,' as that word is used therein. We quite agree with Judge Hough that 'to allege that the only existing law under which a Porto Rican fugitive from justice can be returned thereto from the United States is 'locally inapplicable' would be making a jest of justice.'

It is impossible to hold that Porto Rico was not intended to have power to reclaim fugitives from its justice, and that it was intended to be created an asylum for fugitives from the United States.

In the case of Ex parte Morgan, 20 Fed. 298, 305, the question involved was the right of the governor of Arkansas to honor a requisition for the surrender of a fugitive criminal, received from the principal chief of the Cherokee Nation, and the court, in holding that the governor was not authorized to honor such a requisition, for the reason that the chief of the Cherokee Nation was not the executive authority of any 'state' or 'territory,' inasmuch as the Cherokee Nation or Indian territory was not an organized government, with an executive, legislative, and judicial system of its own, but was exclusively under the jurisdiction of the United States, defined a territory within the meaning of the extradition statute as follows:

'A portion of the country not included within the limits of any state, and not yet admitted as a state into the Union, but organized under the laws of Congress with a separate legislature, under a territorial governor and other officers appointed by the President and Senate of the United States.'

In the case of Re Lane, 135 U. S. 443, 34 L. ed. 219, 10 Sup. Ct. Rep. 760, the accused was charged with the commission of an offense 'within that part of the Indian territory commonly known as Oklahoma.' He was tried and convicted upon an indictment, found under an act of Congress which excepted the 'territories' from its operation; and it was claimed that Oklahoma, which was then a part of the Indian territory, was a territory, and came within the exemption of the act. But the court, Miller, J., said:

'But we think the words 'except the territories' have reference exclusively to that system of organized government, long existing within the United States, by which certain regions of the country have been erected into civil governments. These governments have an executive, a legislative, and a judicial system. They have the powers which all these departments of government have exercised, which are conferred upon them by act of Congress, and their legislative acts are subject to the disapproval of the Congress of the United States. They are not, in any sense, independent governments; they have no Senators in Congress and no Representatives in the lower house of that body, except what are called 'Delegates,' with limited functions. Yet they exercise nearly all the powers of government, under what are generally called 'organic acts,' passed by Congress, conferring such powers on them. It is this class of governments, long known by the name of 'territories,' that the act of Congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction.

'Oklahoma was not of this class of territories. It had no legislative body. It had no government. It had no established or organized system of government for the control of the people within its limits, as the territories of the United States have and have always had. We are therefore of opinion that the objection taken on this point by the sounsel for prisoner is unsound.'

Oklahoma was given a territorial government by the act of May 2, 1890 (26 Stat. at L. 81, chap. 182, § 1).

In Gonzales v. Williams, 192 U. S. 15, 48 L. ed. 322, 24 Sup. Ct. Rep. 177, the court unanimously held that a citizen of Porto Rico was not an alien immigrant, and, among other things, an opinion of Attorney General Knox, relating to a Porto Rican named Molinas, was quoted from as follows:

'He i. e., Molinas is also clearly a Porto Rican; that is to say, a permanent inhabitant of that island, which was also turned over by Spain to the United States. As his country became a domestic country, and ceased to be a foreign country within the meaning of the tariff act above referred to 30 Stat. at L. 151, 203, chap. 11, U. S. Comp. Stat. 1901, pp. 1626, 1690, and has now been fully organized as a country of the United States by the Foraker act, it seems to me that he has become an American, notwithstanding such supposed omission.'

It may be justly asserted that Porto Rico is a completely organized territory, although not a territory incorporated into the United States, and that there is no reason why Porto Rico should not be held to be such a territory as is comprised in § 5278.

Order affirmed.

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