BURNETT, J.
The scope of this opinion will be limited to the consideration of the value to be given to the judgment of the Circuit Court of Multnomah County convicting and sentencing the defendant Carpenter to imprisonment in the penitentiary and paroling him. It is said in Section 756, L. O. L.:
“The effect of a judgment, decree, or final order in an action, suit, or proceeding before a court or a judge thereof of this state or of the United States, having jurisdiction to pronounce the same, is as follows:
“1. In case of a judgment, decree or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment, decree, or order is conclusive upon the*title to the thing, the will or administration, or the condition or relation of the person. * # ”
The following sections of the same compilation are also here set down:
Section 1873. “A person charged in any state or territory of the United States with treason, felony, or other crime, who shall flee from justice and be found in this state, must, on demand of the executive authority of the state or territory from which he fled, be delivered up by the Governor of this state, to be removed to the state or territory making the demand. ’ ’■
Section 1874. “When the person demanded is in custody in this state, either upon a criminal charge, an indictment for a crime, or a judgment upon a con[132]*132viction thereof, he cannot be delivered up until he is legally discharged from such custody; but if he be in custody upon civil process only, the Governor may deliver him up or not before the termination of such custody, as he may deem most conducive to the public good. ’ ’
1, 2. At the outset, the warrant issued by the Municipal Court of the City of San Francisco may be laid aside without further consideration because it is universally held that no process of any state court has any effect or efficiency beyond the boundaries of the state under whose laws it was issued. It is well settled that there is no power to compel the executive of any state to surrender an alleged fugitive from justice. The legislative branch of the government of this state has gone further in limiting the authority of the executive in such matters by the precept in Section 1874 that if the demanded person is in custody in this state upon a judgment of conviction of crime he cannot be delivered up until he is legally discharged therefrom. This is mandatory language and completely removes any discretion which the executive might otherwise exercise in such a case. It is contended, however, that this cannot be urged by or on behalf of the petitioner. In support of this contention we are cited to the following cases: Ex parte Marrin, 164 Fed. 631; In re Fox, 51 Fed. 427; People v. Hagan, 34 Misc. 85 (69 N. Y. Supp. 475); Cozart v. Wolf (Ind.), 112 N. E. 241; Mackin v. People (Ill.), 8 N. E. 178. In all those decisions without exception the prisoner who sought relief by habeas corpus was at large on bail at the time he was taken into the custody from which he sought to escape. For instance, in the Marrin case, he had been convicted in the United States District Court for the Eastern District of Pennsylvania for a violation of the postal laws and had been admitted to bail pending appeal. While-[133]*133he was thus at large he went into the State of New York and was there apprehended under state process to answer indictments pending in the courts of that state. He sought relief from the custody of the state of New York by habeas corpus issued by the United States court of the eastern district of New York. As appears by the report of the case it turned upon Section 753 of the Bevised Statutes of the United States:
“The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the Constitution or of a law or treaty of the United States.”
The court determined in concluding the discussion in the case that
“Frank C. Marrin, therefore, does not seem to be held contrary to any law of the United States, nor in violation of any of his constitutional rights, and the writ of habeas corpus must be dismissed.”
In the course of the opinion, however, the court likewise said:
“It.has also become well settled that if a party is on trial or in duress, that is, in actual custody, under the authority of a state court, no other state court, and no United States court, should, except in an urgent case, take the defendant from that custody, prior to an actual release or relinquishment of the right to the custody on the part of the court before which the matter is pending.”
The principle underlying all the cases last above cited is that when an individual is allowed to go on bail, pending a charge against him, the court admitting-[134]*134him to bail has released him from its authority for the time being which for the purpose of being answerable to another tribunal relegates him to his previous situation making applicable the doctrine that if a defendant is simultaneously accused in different forums it does not lie in his mouth to select the charge upon which he will first he tried. Thus far- there has been no final adjudication of his status upon which he can rely. The case in hand has passed that stage. A court of this state having original jurisdiction has not only assumed control of Carpenter but is in fact executing its judgment upon him and under the very doctrine laid down in the Marrin case ought not to be disturbed in that exercise of its authority. This is in accord with the rule enunciated by Mr. Justice Swayne in Taylor v. Taintor, 16 Wall. (U. S.) 366, 370 (21 L. Ed. 287), thus:
“Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other until its duty is fully performed and the jurisdiction invoked is exhausted: and this rule applies alike in both civil and criminal cases. It is indeed a principle of universal jurisprudence that where jurisdiction has attached to person or thing, it is, unless there is some provision to the contrary, exclusive in effect until it has wrought its function. ’ ’
No case has been produced and it is believed none can be cited where a prisoner has been taken from a state where he is actually serving sentence under a valid judgment of a court of that jurisdiction.
3. The defendant urges that the prisoner must be actually and not constructively in custody to defeat his arrest and transportation upon an extradition warrant. As above stated, the cases cited in support of this argument are those where the individual was at large on hail and hence manifestly not in custody. It remains to [135]
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BURNETT, J.
The scope of this opinion will be limited to the consideration of the value to be given to the judgment of the Circuit Court of Multnomah County convicting and sentencing the defendant Carpenter to imprisonment in the penitentiary and paroling him. It is said in Section 756, L. O. L.:
“The effect of a judgment, decree, or final order in an action, suit, or proceeding before a court or a judge thereof of this state or of the United States, having jurisdiction to pronounce the same, is as follows:
“1. In case of a judgment, decree or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment, decree, or order is conclusive upon the*title to the thing, the will or administration, or the condition or relation of the person. * # ”
The following sections of the same compilation are also here set down:
Section 1873. “A person charged in any state or territory of the United States with treason, felony, or other crime, who shall flee from justice and be found in this state, must, on demand of the executive authority of the state or territory from which he fled, be delivered up by the Governor of this state, to be removed to the state or territory making the demand. ’ ’■
Section 1874. “When the person demanded is in custody in this state, either upon a criminal charge, an indictment for a crime, or a judgment upon a con[132]*132viction thereof, he cannot be delivered up until he is legally discharged from such custody; but if he be in custody upon civil process only, the Governor may deliver him up or not before the termination of such custody, as he may deem most conducive to the public good. ’ ’
1, 2. At the outset, the warrant issued by the Municipal Court of the City of San Francisco may be laid aside without further consideration because it is universally held that no process of any state court has any effect or efficiency beyond the boundaries of the state under whose laws it was issued. It is well settled that there is no power to compel the executive of any state to surrender an alleged fugitive from justice. The legislative branch of the government of this state has gone further in limiting the authority of the executive in such matters by the precept in Section 1874 that if the demanded person is in custody in this state upon a judgment of conviction of crime he cannot be delivered up until he is legally discharged therefrom. This is mandatory language and completely removes any discretion which the executive might otherwise exercise in such a case. It is contended, however, that this cannot be urged by or on behalf of the petitioner. In support of this contention we are cited to the following cases: Ex parte Marrin, 164 Fed. 631; In re Fox, 51 Fed. 427; People v. Hagan, 34 Misc. 85 (69 N. Y. Supp. 475); Cozart v. Wolf (Ind.), 112 N. E. 241; Mackin v. People (Ill.), 8 N. E. 178. In all those decisions without exception the prisoner who sought relief by habeas corpus was at large on bail at the time he was taken into the custody from which he sought to escape. For instance, in the Marrin case, he had been convicted in the United States District Court for the Eastern District of Pennsylvania for a violation of the postal laws and had been admitted to bail pending appeal. While-[133]*133he was thus at large he went into the State of New York and was there apprehended under state process to answer indictments pending in the courts of that state. He sought relief from the custody of the state of New York by habeas corpus issued by the United States court of the eastern district of New York. As appears by the report of the case it turned upon Section 753 of the Bevised Statutes of the United States:
“The writ of habeas corpus shall in no case extend to a prisoner in jail, unless where he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of a law of the United States, or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the Constitution or of a law or treaty of the United States.”
The court determined in concluding the discussion in the case that
“Frank C. Marrin, therefore, does not seem to be held contrary to any law of the United States, nor in violation of any of his constitutional rights, and the writ of habeas corpus must be dismissed.”
In the course of the opinion, however, the court likewise said:
“It.has also become well settled that if a party is on trial or in duress, that is, in actual custody, under the authority of a state court, no other state court, and no United States court, should, except in an urgent case, take the defendant from that custody, prior to an actual release or relinquishment of the right to the custody on the part of the court before which the matter is pending.”
The principle underlying all the cases last above cited is that when an individual is allowed to go on bail, pending a charge against him, the court admitting-[134]*134him to bail has released him from its authority for the time being which for the purpose of being answerable to another tribunal relegates him to his previous situation making applicable the doctrine that if a defendant is simultaneously accused in different forums it does not lie in his mouth to select the charge upon which he will first he tried. Thus far- there has been no final adjudication of his status upon which he can rely. The case in hand has passed that stage. A court of this state having original jurisdiction has not only assumed control of Carpenter but is in fact executing its judgment upon him and under the very doctrine laid down in the Marrin case ought not to be disturbed in that exercise of its authority. This is in accord with the rule enunciated by Mr. Justice Swayne in Taylor v. Taintor, 16 Wall. (U. S.) 366, 370 (21 L. Ed. 287), thus:
“Where a state court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other until its duty is fully performed and the jurisdiction invoked is exhausted: and this rule applies alike in both civil and criminal cases. It is indeed a principle of universal jurisprudence that where jurisdiction has attached to person or thing, it is, unless there is some provision to the contrary, exclusive in effect until it has wrought its function. ’ ’
No case has been produced and it is believed none can be cited where a prisoner has been taken from a state where he is actually serving sentence under a valid judgment of a court of that jurisdiction.
3. The defendant urges that the prisoner must be actually and not constructively in custody to defeat his arrest and transportation upon an extradition warrant. As above stated, the cases cited in support of this argument are those where the individual was at large on hail and hence manifestly not in custody. It remains to [135]*135consider whether Carpenter is in custody within the meaning of Section 1874, L. O. L. It is provided in substance in Section 1586, L. 0. L., as amended by the act of February 18, 1911, that when a person is convicted of felony and sentenced for not to exceed ten years’ imprisonment in the penitentiary and sentence has been pronounced the court may in its discretion parole him and permit him to go and remain at large under the supervision and subject always to the order of the court as it may deem best until the parole shall be terminated. It is provided by Section 1587, L. 0. L., that the order of parole shall require, among other things, that the defendant shall report to the court his whereabouts with such further and additional information as it may desire or demand. Section 1589, L. 0. L., empowers the court to revoke the sentence with or without notice to the prisoner in case he fails to observe all the conditions of his parole and the judicial order. In construing this statute in State v. Goddard, 69 Or. 73 (133 Pac. 90, 138 Pac. 243, Ann. Cas. 1916A, 146), Mr. Chief Justice McBride, speaking of a similar situation, said:
“It was made a part of the judgment, and its conditions in themselves constitute a semi-imprisonment. The defendant may not leave the jurisdiction of the court; he must report his whereabouts to the judge every month; he must submit to the judgment of the court as to his conduct; and he must obey strictly every municipal ordinance of any town in which he resides, and all these under penalty of having his parole revoked and being imprisoned for 20 years in case he violates a single one of the conditions. All these conditions constitute a very serious abridgment of the liberty of a citizen.”
In Drinkall v. Spiegel, 68 Conn. 441 (36 Atl. 830, 36 L. R. A. 486), the court discussed the effect of a parole and said:
[136]*136“When the plaintiff was liberated from confinement within the reformatory and found himself at large in the State of New Tort, he was in effect within the prison liberties. But it is the settled doctrine on this subject that the liberties of the prison are an extension or enlargement of the walls of the prison. A person, therefore, is in prison, in legal contemplation, when within the liberties of the prison. An escape from the liberties is an escape from the prison.”
Hughes v. Pflanz, 138 Fed. 980 (71 C. C. A. 234), was-a case where the petitioner had been convicted in Indiana of a felony and had been paroled under a statute quite similar to the Oregon enactment. He departed from Indiana and went to Kentucky where he was arrested in extradition proceedings instituted for the purpose of returning him to the former state to serve the remainder of his sentence already pronounced and upon which he had been paroled. It was held in effect that he had escaped from custody by leaving the state of Indiana in violation of his parole. Under such circumstances the convicted defendant is not a free agent to go as he pleases like he would if he had been admitted to bail. He is under the immediate restraint of the court and in its custody for all practical purposes. He is enduring compulsory expiation of an offense. In State ex rel. Nicholson v. Bush, 136 Tenn. 478 (190 S. W. 453), the petitioner was convicted of an assault with intent to commit murder and was sentenced to the penitentiary on that account. At the same term he was also convicted of the charge of carrying a pistol, for which he was condemned to confinement in the county workhouse for a certain period. He was imprisoned in the penitentiary for the more serious offense and was afterwards paroled, whereupon the defendant, who was sheriff, arrested him and sought to incarcerate him in the county workhouse on the les[137]*137ser charge. He was released on habeas corpus on the ground that he was still in custody under the first conviction mentioned and could not he subjected to the workhouse imprisonment.
4. Again, we remember that the government of this state is divided into three departments, the legislative, the executive and the judicial; and that neither of these has any authority to interfere with the exercise of the functions of either of the others. Specifically, the executive has no right to override or annul the action of the Circuit Court or to interfere with it in the execution of its own judgment. It is true that the Governor may pardon an offender by virtue of his constitutional power in that behalf, but even that is not effective unless it is accepted by the prisoner to whom the pardon is offered. As said by Mr. Chief Justice Marshall in United States v. Wilson, 7 Pet. (U. S.) 150 (8 L. Ed. 640):
“A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.”
The doctrine of this case has never been disturbed by any ruling to which our attention has been directed. See also: “In re De Puy, Fed. Cas. No. 3814, 3 Ben. 307; Michael v. State, 40 Ala. 361; Ex parte Powell, 73 Ala. 517 (49 Am. Rep. 71); Redd v. State, 65 Ark. 475 (47 S. W. 119); Grubb v. Bullock, 44 Ga. 379; People v. Potter, 1 Park. Cr. (N. Y.) 47, 51; Ex parte Lockhart, 1 Disney (12 Ohio Dec. 515), 105, 108.
Carpenter’s legal condition has been fixed by the judgment of the Multnomah Circuit Court. That adjudication is declared by Section 756, L. O. L., to be conclusive. It restrains the state as well as Carpenter. [138]*138He is entitled to enjoy its privileges and protection as well as to sustain its burdens and no power resides in the executive to deprive Mm thereof. He is not taking advantage of his own wrongs as the defendants urge. He is relying upon a judicial determination of his condition conclusive alike upon the state and its officers of whatever grade as well as upon himself. To hold otherwise would be to say that the Governor may override the decisions of the courts and interfere with their administration of justice without even resorting to the device of declaring martial law. To deny the prisoner or one petitioning for him in habeas corpus the right to urge this' would be to deny him the equal protection of the law. It would withhold from him the advantages of the judgment in execution of which he is now held. It would be like saying to him, “You are bound by this decision of the court but the other party to it and its officers may ignore it. ’ ’ These principles are crystallized in the statute declaring that the person demanded cannot be delivered up until he is legally discharged from the custody of the court under which he is serving sentence. In short the executive warrant of extradition was issued not only without authority of law but also in disregard of law and is consequently void. Being void it constitutes no protection or sanction to the defendants or either of them. Under it they have no right whatever to control the movements of the prisoner. For these reasons the judgment of the Circuit Court is reversed and the cause remanded with directions to that tribunal to discharge the prisoner from the custody of the defendants.
Reversed and Remanded "With Directions.