
    The People of the State of New York ex rel. Abraham Kopel, Appellant, v. Theodore A. Bingham, Police Commissioner of the City of New York, Respondent.
    First Department,
    February 8, 1907.
    Extradition—requisition from Governor of Porto Rico—what consti- . tutes a “territory ” of the United States,
    Extradition from the State of New York is governed by the Constitution and statutes of the United States, for upon that subject the individual States do not possess the power of independent nations.
    Upon the ratification of the treaty of Paris by which Porto Rico was ceded to the United States'that island ceased to be a foreign territory, and when Congress established a civil government with executive, legislative and judicial powers under the control and jurisdiction of the United States, Porto Rico became an organized territory of the United States.
    Section 5278 of the United States Revised Statutes provides that “ whenever the executive authority of any State or Territory demands any person as a fugitive from justice * * * 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 the fugitive to be delivered.”
    Hence, on the requisition of the Governor of Porto Rico for the extradition of a person charged with embezzlement in that island it is the duty of the Gov- ' ernor of New York to issue a warrant for his arrest as provided by section 827 of the Code of Criminal Procedure; and it is not necessary that the extradition be had through the'Federal authorities under section 5270 of the United States Revised Statutes which governs extradition to foreign territory.
    Irrespective of the territorial status of Porto Rico the requisition should be honored for in 1900 Congress provided (31 U. S Stat. at Large, 81, § 17) that the Governor of Porto Rico should have “all the powers of governors of the territories, of the United States that are not locally inapplicable,’' and this . would include the'power of requisition conferred on such Governors by sec- ' tion .5278 of the United.States Revised Statutes.
    Appeal by the relator, Abraham Kbpel, from an order oh the Supreme Court, made at the New York Special Term and entered in tile office of the clerk of the equnty of New York oil the 12th day of October, ,1906, dismissing a writ of habeas corpus and remanding the relator into custody. .
    The relator was taken into custody by the police commissioner of the city of New YOrk by virtue of a warrant for his extradition issued by the Governor of the State of New York on the 30th day of July, 1906, upon á requisition from the Governor- of Porto Rico. ■ Subsequently the relator Obtained a writ of habeas corpus directing the police commissioner to . produce the body of the relator at Special . Term.
    
      Alfred R. Page, for the appellant.
    
      Robert S. Johnstone, Deputy Assistant District Attorney, for the respondent.
   Ingraham, J.:

It seems to have been held by the Court of Appeals in People ex rel. Corkran v. Hyatt (172 N. Y. 176) that no person can or should be extradited from one State to another unless the case falls ' within the Federal Constitution or statutes, and that the; power which independent nations have to surrender criminals to other nations as a matter of favor or comity is not possessed by the States. The Constitution of the United States provides (Art. 4, § 2, subd. 2) that a person charged in any State with treason, felony or ' other Crime, who shall flee from justice and be found in anothei State^ shall, on demand of the executive authority of the State from which lie fled, be delivered‘up, to be removed to the State having jurisdiction of the crime.” Under this clause of the Constitution Congress has enacted"(U. S. R. S. § 5278) that “whenever the executive authority of any State or Territory deniands any person, as a fugitive from justice of the executive authority, of. any. State or Territory to which such person has fled * * *" it shall be. the. ' duty of the executive authority of the State oi Territoiy to which such person has fled to cause him to be arrested and secured, * * * and to cause tire fngitive to be delivered.”

Section 5270 (U. S. R. S.) provides for the extradition of fugitives from justice to a foreign country. . This section contains a provision that was added in 1900 (31 U. S. Stat. at Large, 656, chap. 793) which provides that “ whenever any foreign country or territory or any part thereof is occupied by or under the control of the United States any person who shall violate, or who has violated, the criminal laws in force therein, by the commission of any of the following offenses: ” (then follows an enumeration of the offenses) “ and who shall depart or flee, or who has departed or fled, from justice therein to the United States, any Territory thereof or to the District of Columbia, shall, when found therein, be liable to arrest and detention by the authorities of the United States and on the written request or requisition of the military governor or other dliief executive officer in control of such foreign country or territory shall be returned and surrendered as hereinafter provided to such authorities for trial under the laws in force in the place where such offense was committed. * * * Provided further, That such proceedings shall be had before a judge of the courts of the United States only, who shall hold such person on evidence establishing probable cause that he is guilty of the offense charged. * x" * If so held such person shall be returned and surrendered to the authorities in control of such foreign country or territory on the order of the Secretary of State of the United States.” It was further provided that the provisions of sections 5270 to 5277 (U. S. R. S.) as far as applicable shall govern proceedings authorized by this proviso. These provisions all relate to the surrender of a fugitive from justice by the Secretary of State to the government of a foreign country and have no relation to the surrender of fugitives from justice from one portion of the United States to another.

Section 5278 (U. S. R. S.) provides that “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 * * * 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 the fugitive to be delivered to such agent when he shall appear.” This provision of the Revised Statutes was originally passed on February 12, 1793 (1 U. S. Stat. at Large, 302, chap. 7 § 1), and it seems to have been in force from that time to the present.

By section 827 of the Code of Criminal Procedure it is provided that “ It shall be the duty of the Governor in ail 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 Y ork 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 he or they may have a writ of habeas corpus, upon filing an affidavit to the effect that lie- or they are not the person or persons mentioned' in said requisition-

The question presented in this case would, therefore, seem to be whether Porto Rico is a State or territory, within section 5278 (U. S. R. S.) or a foreign country'or territory occupied by or under the control of the United States. In the latter case the extradition must be under the provisions, of section 5270 (U. S. R. S.); while if Porto Rico is a territory of the United States the relato: may be extradited under section 827 of the Code of Criminal Procedure, to which attention has been called.

The proviso added to section 5270 (U. S. R. S.) by the act June 6, 1900 (supra), was construed in Neely v. Henkel, No. 1 (180 U. S. 109). That case presented the question of the apprehension of a fugitive from justice froto the island of Cuba, and,it was held t-liat Cuba was, at the time that,decision was rendered (January 14, 1901), occupied by and under the control of the United States, of which the court would take judicial notice. Attention was then called to the treaty of peace between the United States and Spaiji, and it was held that, under this treaty and .the acts of the military authorities of the United States under it, the island of Cuba was foreign territory within the meaning of this amendment to section 5270 (U. S. R. S.), and could not be regarded in any constitutional, legal or international sense part of the United States. The court there said : “ It is true that as between Spain and the United States — indeed, as between the United States and all foreign nations — Cuba, upon the cessation of hostilities with Spain and after the Treaty of Paris was to be treated as if it were conquered territory. But as between the United States and Cuba that Island is territory held in trust for the inhabitants of Cuba, to whom it rightfully belongs, and to whose exclusive control it will be surrendered when a stable government shall have been established by their voluntary action. * * * Indeed, the Treaty of Paris contemplated only a temporary occupancy and control of Cuba by the United States.”

It seems from the whole discussion in this case that the provision of section 5270 (U. S. R. S.) would not have been applicable if Cuba had become territorially a part of the United States; that the proviso of that section requiring the surrender of public officers, employees or depositaries fleeing to the United States after having committed in a foreign country, or any part thereof, occupied by or under the control of the United States, the crime of embezzlement or criminal malversation of the public funds, had special application to Cuba in its present relation to this country.

By the treaty of Paris, the island of Porto Bico was expressly ceded to the United States. (See 30 U. S. Stat. at Large, 1755, art. 2.) The 9th article of that treaty (Id. 1759) provided that “ the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States (among others, Porto Rico) shall be determined by the Congress.” By section 1977 of the United States Bevised Statutes it is provided that “all persons within the jurisdiction of the United States shall have the same light in every State and Territory to make and enforce contracts, to sue, be parties^ give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.”

After the treaty of Paris Congress passed an act for the government of Porto Rico. (31 U. S. Stat. at Large, chap. 191.) This act was entitled “An act temporarily to provide revenues and a civil government for Poí’to Rico, and for other purposes/’ and created all the inhabitants continuing to reside in Porto -Rico, - except such as elected' to preserve their -allegiance to the Crown of Spain, together with such citizens of the-United. States as resided in Porto Rico, a body politic under the name off The. People of Porto Rico, to whom governmental powers were thereinafter.conferred. It was then provided, that ahflie statutory laws of the United States except the internal-revenue laws should have, the same force and effect in Porto, Rico :as in the United States, and provision was made for the appointment of a Governor by the President, by and- with-the advice and consent of the Senate, and for a Legislative Assembly, one branch Of which was,1o be elected by the qualified voters Of Porto Rico. All laws enacted by this Legislative Assembly were to be reported to Congress, who should have .power and authority to annul the same. A complete judiciary system was established with provision for Writs-of error and appeals to the Supreme Court • of -the United States in the same manner, under the same regulations and in the same cases as from the Supreme Courts of the . Territories of the United States.

By the operation of the treaty of Paris the island of Porto Rico, therefore, became territorially a part of the United States. It was ceded to the United States by that treaty, and since that time, has been the property of the United States the same as the Northwest Territory became the property of the United States.;' as .the Lofiisiana Territory became the property of the United States by - .the treaty with Prance m 1803 ; and the territory acquired by the treaty of peace between the United States and Mexico.- Upon the organization by the United States of- the various governments of each- of these territories • they became. territorial governments under the control of the United States, ;áil"d under the express provisions of subdivision 2: of section 3 of''article 4 of the'Federal- Constitution,, which provides that “ the Congress shall "have power to dispose of and make all needful fules and regulations respecting the -territory or other property belonging to. the United States,” Congress, had the power to prescribe such government for these various territorial possessions as seemed to it appropriate -to insure good government. When, therefore, Porto Bico was acquired by the government of the United States by virtue of the concession contained in the treaty of Paris, the sovereignty of that island vested in the United States, and Congress had power to provide for its government in such manner as it was conceived would best subserve the principles of the Constitution. When it created such a government under the authority of the United States, providing for the appointment of a Governor by the President and Senate, a legislative body to exercise the legislative powers, and a judiciary to exercise the judicial powers within the territorial limits of the island, I can see no reason why that island did not then become a -territory of the United States with the same effect a's other territories acquired by the United States and divided into separate territories governed as provided by law. It seems to me that there is no fundamental distinction between a territory organized by the United States from the property acquired from France or Mexico, and the territorial government organized by the United States from property acquired by the United States from Spain by the treaty of Paris. When the United States organized a government for the island of Porto Eico with executive, legislative and judicial powers, a territory was created subject to the jurisdiction of the United States, and thus came directly within the provisions of the laws of the United States relating to territories. Porto Eico has ceased to be a foreign country or territory,” and has become a part of the territory of the United States, and when the United States organized a government under its jurisdiction and control for that island it then became, within the meaning of all provisions of law regulating territories, a territory of the United States.

I think this status of the government of Porto Eico is recognized by the Supreme Court of the United States in De Lima v. Bidwell (182 U. S. 1). In the opinion in that case there is a statement of the various territories that have been acquired by the United States and the action of the government in taking possession of and governing these territories until regular territorial governments were established by Congress. After considering the effect of the treaty of Paris, the court said (p. 196): - “ It follows from this that by the ratification of the treaty of Paris the island became territory of the United States — although not an organized territory in the technical sense of the word.”. That whatever be the source of this power, its uninterrupted exercise by Congress' for a century, and: the repeated declarations of this court, have settled "the law that the right to acquire tendtory involves the right to govern and" dispose of It. * ■* * Under this power Congress may deal with territory acquired by treaty ;■ may administer its government as it does that of the District of Columbia-; it may organize a local territorial government; it. may admit it as a State upon an equality with other States; it may sell its public lands to individual citizens or may donate them as homesteads to actual settlers. "In' short, when once acquired by treaty it-belongs to the - United States and is subject to the disposition of Congress.” And the conclusion of the -court was that Porto Rico was not a foreign country but a territory, of the United -States. Although there was in that Case a strong dissent, it was based upon the position taken that Porto Rico occupied a relation to the United, States between that of being a foreign country absolutely-and that of being a domestic territory absolutely, and because of. that relation its'product was •subject to the duties imposed by the Dingley Act. The. whole discussion turned Upon the condition of Porto Rico between the timé of- the ratification of the treaty of Paris and the legislation by Congress establishing a government for that island..

When Congress established a civil government, for the-island of Porto Rico under the control and authority of the United States, a territorial government was. established under which Porto Rico became-an organized territory of the United States. It ceased-to be a foreign country or territory upon the ratification of the treaty of Paris between the United States and Spain. It became an organ-, ized territory of the United States when the United States, established a form of ■ government under which the island' was to be governed subject to the jurisdiction - of Congress and officers •appointed in pursuance of law establishing' a territorial government.

I thinks therefore,- it became a territory within the provisions of section 5278 (U. S. R. S.), and it follows that the order appealed from should be affirmed. .

' 'McLaughlin and Laughlin, JJ„ concurred.

Patterson, P. J. (concurring):

I concur in the views as expressed by Mr. Justice Ingraham, concerning the status of the island o.f Porto Eico as a territory of the United States; and while it is not expressly decided in De Lima v. Bidwell (182 U. S. 1) and Downes v. Bidwell (Id. 244), yet it seems to have been assumed throughout the opinions written by the learned justices of the Supreme Court of the United States in those cases that such island is a territory, although not a part of the United States within' the revenue clause of the Constitution. I am inclined, however, to the view that it is not necessary to determine on the appeal now pending before us whether the island of Porto Eico is an incorporated territory. It is an organized territory with a government established by the Congress, by a law which it was authorized to enact. Until "Congress shall see fit to incorporate territory ceded by treaty "into the United States, we regard it as settled by that decision (Downes v. Bidwell, 182 U. S. 244) that the territory is to be governed under the power existing in Congress to make laws for such territories,” etc. (Dorr v. United States, 195 U. S. 138, 143.)

It seems to me that the authority of the Congress to legislate for file return of fugitives from justice to the authorities of Porto Eico is,to be found in the power last referred to. The question here is whether the Governor of Porto Eico had the right to call upon the Governor of the State of Hew York for the surrender of the relator, and whether the duty was incumbent upon the Governor of the State of Hew York to comply with such a demand. The Congress of the United States established1 a complete governmental scheme for the island of Porto Eico, which included an executive head called the Governor. " By an express provision- of the law creating that governmental establishment, passed April 12, 1900 (31 U. S. Stat. at Large, 81, § 17), and commonly called the Foraker Act, it is required that the Governor of Porto Eico 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. By section 5278 of the Eevised Statutes of the United States it is enacted that “ 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 * * *' 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.” The Governor of Porto Rico had the power to proceed under this section of the Revised Statutes by force of the terms of section 17 of the act of April 12, 1900. " ' ,

It-is charged against the present relator that he is the subject, of a criminal prosecution by “ The People of Porto Rico,” and the Governor of Porto Rico, being invested by the Congress with the authority of a Governor of a Territory of the United States, has, in the performance of the duty, and obligation resting upon.him to execute the laws of the island of Porto Rico,' demanded the surrender or rendition of the relator to the' proper, authorities of that island., " Unless it must be held that the provisions of section.5278 of the Revised Statutes of the United States are locally inapplicable to the island of Porto Rico, it seems to me that the clear authority for the demand and surrender of the relator is shown to" exist by force of the act. of the Congress passed in"pursuance of its power to legislate. The provisions of section 5278 of the Revised Statutes of the United States are general and relate to all Territories. They are just as applicable to one as to .another. They cannot by any proper understanding of - language be regarded as only locally-' applicable to a -particular Territory with a permitted particular form ' of organized or incorporated government.

Laughlin and Houghton, JJ., concurred. . - -

Order affirmed. Order filed.  