Ex parte Rosenblat

51 Cal. 285

• Court: California Supreme Court
• Decided: July 1, 1876
• Docket: No. 10,200
• Status: Published

Opinion

By the Court, McKinstry, J.:

Under the Constitution of the United States and the act of Congress, a State is bound to surrender a fugitive for whom a proper requisition has been-issued by the Governor of the sister State. The act of the Legislature was passed as auxiliary to the proceedings under the Constitution and act of Congress, but is based solely on principles of comity; and the Legislature had power to affix as many conditions as to the mode in which the preliminary arrest and examination should be conducted as the Legislature deemed proper.

We are inclined to the belief that a person thus arrested, with a view to his being surrendered on requisition expected to arrive, is entitled to his discharge if his examination is not brought on before the magistrate within six days. The act of the Legislature which authorizes such preliminary arrest should be strictly complied with, but we do not think it necessary to decide that question in the present case.

This is not a ease in which writs have been issued both from a State court and a United States court, where the officer of the State or Federal court,, as the case may be, first serving the writ is entitled to retain possession of the body.

We think, reference being had to the obligation imposed by the Constitution of the United States, that the same rule is applicable to a proceeding under a requisition from the Governor of another State as applies when the question is between a criminal proceeding initiated in this State and a civil action. In such case the interest of the private suitor who has caused a defendant to be arrested must yield to the paramount interest of the people of the State.

Ordered that H. H. Ellis, chief of police of the city and county of San Francisco, State of California, be, and he is hereby authorized to serve the warrant of arrest issued by the Governor of the State of California, upon the requisition of the Governor of the State of New York, for the surrender and delivery of Bosenblat, and to deliver said Bosenblat to Bichard O’Connor, agent of the State of New York ; and the sheriff of said city and county is hereby authorized and directed to surrender and deliver the body of said Samson Bosenblat into the custody of said H. H. Ellis, chief of police as aforesaid, for the purposes aforesaid.