Ex Parte Cockburn

257 S.W. 458, 301 Mo. 575, 1923 Mo. LEXIS 99

• Court: Supreme Court of Missouri
• Decided: December 17, 1923
• Status: Published

Opinion

WALKER, J.

The petitioner alleges that he is unlawfully deprived of his liberty by John F. Willman, Sheriff of St. Louis County, Missouri, and Park Findley, Sheriff of Polk County, Iowa. The formal issuance of the writ and the production of the body of the petitioner before this court having been waived, the returns of the respondents to the allegations of the petitioner’s application are considered as though they were made to the writ under the recognized formalities of our procedure in cases of this character.

The petitioner was indicted by the grand jury of Polk County, Iowa, for obtaining money under false pretenses. Subsequently, being entitled so to do by reason of former service in the United States Army, he made application, while in Des Moines, Iowa, to the Veterans’ Bureau for a permit to enter a Government hospital to receive treatment for diabetes. This permit was granted, and he was assigned to the hospital at Jefferson Barracks in this State, and his transportation and the other expenses of his journey thereto having been paid by the Government he was admitted as a patient therein. While there undergoing treatment, application for a requisition was made by the Acting Governor of Iowa upon the Governor of Missouri for petitioner’s'retum to the State of Iowa, upon the allegation that he was charged in Iowa with a felony and was a fugitive from justice. Upon the filing of the application with the Governor of this State and a consideration of same, lie granted a requisition and directed the issuance of a warrant for the arrest of the petitioner, which was executed by the Sheriff of St. Louis County, preparatory to the delivery of the petitioner to the sheriff of Polk County, Iowa, as the agent or messenger named to convey the petitioner to that State to answer the charge preferred against him. Thereupon the application for the petitioner’s discharg*e was filed in this court. The returns thereto of the officers who have the legal custody of the petitioner and who are named as respondents, are, as to the Sheriff of St. Louis County, that his detention of the petitioner is under the writ of extradition and the warrant based thereon issued by the Governor of this State; and as to the Sheriff of Poll?: County, Iowa, that his detention of the prisoner is under the same writ and warrant and arises out of the authority delegated to him by the governor of the demanding state.

The illegality of the petitioner’s detention is alleged to consist in the facts: (1) that the application for the requisition and the return of the petitioner to Iowa was made by the acting governor, rather than the actual governor of that state and that the laws of same do not confer power upon an acting governor to apply for requisitions for the return of persons charged with crime who are in another state; and that the granting of the requisition by the Governor of Missouri and his issuance of the warrant for the arrest of the- petitioner was unauthorized and hence futile to effect his legal removal to Iowa; (2) that the petitioner is not a fugitive from justice, but a patient in a United States hospital on a Government reservation which he left the State of Iowa to enter and where he had been for a number of months prior to and at the time of the service of the warrant upon him; (3) that the warrant issued by the Governor of the State of Missouri is illegal for the reason that it was executed upon a reservation of the national government, where the petitioner was at the time in a hospital undergoing treatment as a patient.

I. The supreme executive power in Iowa, as in other states, is vested in the governor. The Constitution of the United States (Sec. 2, art. 4), and the statutes (U. S. Comp. Stat. 1901, sec. 5278, p. 3597), while not constituting a grant of power are in express recognition of the authority theretofore existing in the governor of a state to demand of the executive of another state the extradition of a fugitive from justice. [Holmes v. Jennison, 14 Pet. (U. S.). l. c. 597; In re Fetter, 3 Zab. (N. J.) 311; Kentucky v. Dennison, 24 Howard (U. S.) 66.] An illustration of the exercise of this power in the State of Iowa appears in Iowa v. Kealy, 89 Iowa, 94, which is but a type of other cases of like effect. Under the Iowa Code, 1919 (Sec. 9145, title 34, chap. 9), the governor in any case authorized by the Constitution and laws of the United States may appoint an agent to demand of the executive of another state or government the return of a fugitive from justice charged with treason or felony. In the event of the disability of the governor, his powers and duties may be performed by the lieutenant-governor. [Sec. 17, art. 4, Const. Iowa.] The disability of the governor in this case is shown by the record in that he notified the lieutenant-governor of such disability and called %im to discharge the duties of the office. It also appears that the acting governor who made the demand upon the Governor of Missouri was the lieutenant-governor of Iowa, whose authority under the circumstances was, as before shown, that of the governor. [State ex rel. McNichols v. Justus, 84 Minn. 237, 55 L. R. A. 325; 11 R. C. L. sec. 18, p. 726.] Moreover the contention is not made that the lieutenant-governor, as such, was not authorized. to perform the duties of the governor in the demand made herein, but that the same is insufficient because it appears upon the face of the application that the demand is made simply by the “acting governor.” In other words the implication is clear that the defect complained of is in the omission of the words, “lieutenant governor” preceding those of “acting governor.” The signature of the acting governor without more was sufficient to sustain the presump tion that he was authorized to act as such. This is especially true in view of the attestation of his signature as acting governor by the Secretary of State. In addition, it is a general rule that if objection be made to the sufficiency of requisition papers, the ground of the objection thereto must be alleged and proved or it will not be considered upon a review of the proceedings by habeas corpus, the presumption being, in the absence of words of negation accompanied by proof, that the person making the demand for the writ was at the time authorized so to do. [Kemper v. Metzger, 169 Ind. l. c. 124; 11 R. C. L. sec. 18, p. 726; Armstrong v. Van De Venter, 21 Wash. 682, 12 Am. Cr. Cas. 327; Ex parte Dawson, 83 Fed 306; Ex parte Stanley, 25 Tex. Cr. 372; Katyuga v. Gosgrove, 67 N. J. L. 213.]

II. The second contention is that the petitioner is not a fugitive from justice within the meaning of the Federal Constitution and statutes. Judicial literature is replete with discussions upon this subject. The weight of these opinions is to the effect that the moving purpose which may have induced one accused of crime to leave the state in which it was committed will not be considered by the courts of the state in which he is found in determining an extradition proceeding; but that the sufficiency of the demand for his return will be determined by a formal showing that he is charged with the commission of a crime within the demanding state and that when sought to be subjected to criminal process to answer therefor, he is found to have voluntarily left that state and is then in the asylum state from which it is sought to extradite him. Illustrative of the application of this rule in Missouri we held in Ex parte Opel v. Weinbrenner, 285 Mo. 365, that a verified complaint charging persons, sought to be extradited, with murder in another state accompanied by affidavits that the accused were in this State and fugitives from justice, constituted prima-facie proof of those facts and would be deemed sufficient in the absence of strong countervailing proof to the contrary to authorize the denial of a writ of habeas corpus for their re-' lease and to authorize the then acting governor to whom the application was made to honor the requisition for their delivery to the demanding state to answer the charge preferred against them. Later in Ex parte Albright v. Clinger, 290 Mo. 83, after again reviewing the rulings on the subject even more explicitly than in the Opel Case, we held in denying the right to release by habeas corpus by one sought to be extradited for a crime charged to have been committed in another state, and who was shown to be in this State at the time criminal process to answer for the offense was sought to be served upon him, was a fugitive from justice and as such subject to extradition.

The application made to the Governor of this State containing all of the essential facts necessary to bring this case within the rule above announced and to which we have, as shown, given adherence, we overrule this contention.

A review of the rulings elsewhere upon this subject may be found in Reed v. Carrigan, exhaustively annotated in 13 A. L. R. 415; and in State v. Wellman, 102 Kan. 503, as annotated in 1918D, Ann. Cas. l. c. 1011, and in Ex parte McDaniel, 76 Tex. Crim. 184, as annotated in 1917B, Ann. Cas. l. c. 337.

III. The further contention is made that the service of the warrant issued by the Governor of this State is illegal in that it was executed upon a reservation of the national government where the petitioner was at the time in a United States hospital undergoing treatment as a patient.

State courts and officers authorized by the laws of a state to issue writs of habeas corpus have that right in any .case where it is alleged that the person is illegally confined within its limits, unless it appears that the confinement is under the claim, color or authority of the United States. [In re Tarble, 13 Wall. (U. S.) 397; Robb v. Connolly, 111 U. S. 624.]

The petitioner’s detention under the authority of the United States does not appear. He voluntarily, in the exercise of a privilege granted to him as a former soldier, sought admission to and became a patient in the Government hospital at Jefferson Barracks and as such was undergoing treatment there at the. time the warrant was served on him. His entry to the hospital being voluntary his right to depart therefrom was subject to his own will. It cannot be said therefore that he was in any sense detained under the authority of the United States. The mere fact that he was territorially within the confines of a Government reservation at the time the warrant was served upon him did not render him immune from arrest upon a state warrant. Such immunity exists only when it appears in the cession by the State to the National Government that the former has divested itself of all power over the place or territory ceded in regard to the execution of process of the arrest and detention of persons found thereon who are charged with crime. There was no cession, legislative or otherwise, of the character above referred to in the transfer of the land, on which Jefferson Barracks is located, to the United States. An account of this transaction, while interesting to the student of history, is otherwise irrelevant. It will suffice to say that the land on which the barracks is located was originally a piart of a tract ceded by the Governor of Upper Louisiana to the village of Carondelet and was designated in the survey of same as the “Commons of Carondelet.” This cession was confirmed to the village by the Surveyor General of the United States in 1834. Various surveys were made by the government at different times to ascertain the extent of the portion, if any, of the land thus ceded, which was being used by the government of the United States. In 1854, the village of Carondelet made a quit-claim.deed to the Government to certain portions of this cession on which the Government barracks had been erected. Thereafter the village of Carondelet brought suit in the United States Court of Claims as sailing the validity of the proceedings under which the United States claimed title to the land being used by it and asserted title in the village to the entire tract. In the meantime the village was merg’ed in the city of St. Louis, and the suit was thereafter prosecuted in its name. The Court of Claims ruled adversely to the city’s contention, and the court’s finding was affirmed by the Supreme Court of the United States. [City of St. Louis v. United States, 92 U. S. 462.] In none of these proceedings nor in any legislative enactment, either in express terms or by necessary implication, does it appear that the State has ever relinquished its right to serve process upon persons charged with crime who are found upon the Jefferson Barracks reservation. The courts and numerous opinions of United States Attorneys-General hold that the right of the United States to purchase or otherwise acquire title to land within the territorial limits of a state does not oust the jurisdiction or sovereignty of such state over the land so purchased; it remains until the state in express terms or by necessary implication relinquishes its authority. An illuminating discussion of this question may be found in Lee v. Kaufman, 15 Fed. Cas. No. 8191, Column 2, p. 192, which involved the title to the Arlington Estate in which the rule as to a state’s jurisdiction as above stated, is approved. Quoting from Vattell, United States Judge Hughes thus clearly states the reason in support of the retention of jurisdiction by a state as follows: “What is called the high domain, which is nothing but the domain of the body of the nation or of the sovereign who represents it, is everywhere considered as inseparable from sovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in a state, may be separated from the sovereignty and nothing prevents the possibility of its belonging to a nation in places that are not under its jurisdiction. Thus may sovereigns have fiefs and other possessions in the territories of another prince. In these cases they possess them in the manner of private individuals.” The cases of United States v. Cornell, 25 Fed. Cas. No. 14867, p. 646, and 25 Fed. Cas. No. 14868, are further illustrative of the appropriate application of the rule. In these cases it is stated, in effect, that the purchase of lands by the United States for public purposes does not of itself oust the jurisdiction or sovereignty of the state over the lands so purchased; that exclusive jurisdiction is the necessary attendant of exclusive legislation; .and, may we add, in the absence of the latter the former does not exist. We therefore overrule this contention. Finding no merit in the petitioner’s application it is denied and he is ordered remanded to the custody of the respondents.

Woodson, C. J., James T. Blair, Ragland, White and David E. Blair, JJ., concur; Graves, J., absent.