[211 U.S. 468, 469] Mr. Alfred R. Page for plaintiff in error.
[211 U.S. 468, 471] Messrs. Robert C. Taylor and Robert S. Johnstone for defendant in error.
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 [211 U.S. 468, 472] 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:
By 827 of the Code of Criminal Procedure of New York it is provided:
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 [211 U.S. 468, 474] 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 S. 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 [211 U.S. 468, 475] 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:
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:
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:
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