The opinion
CARTER, J.
I dissent. While the policy embodied in the Uniform Act for Out-of-State Parolee Supervision (Stats. 1937, p. 469) may be desirable in facilitating the transference from one state to another of violators of parole, I do not believe the legislation can stand in the face of United States Constitution, article IV, section 2, clause 2, and the Congressional Act, 18 U. S. C. A. 662, providing for extradition. It has been uniformly held that the United States Constitution and the act of Congress are paramount in this field and no state statute inconsistent therewith may stand. (McCline v. Meyering, 75 F. (2d) 716; Day v. Keim, 2 F. (2d) 966; Ex parte Morgan, 20 Fed. 298 ; Ex parte Montgomery, 244 Fed. 967 (affirmed 246 U. S. 656 [ 38 S. Ct. 424 , 62 L. Ed. 924 ]) ; Kuney v. State, 88 Fla. 354 [ 102 So. 547 ]; Fitzpatrick v. Williams, 46 F. (2d) 40; later Florida case, State v. Quigg, 91 Fla. 197 [ 107 So. 409, 411 ]. Authority for interstate rendition of fugitives by extradition emanates solely from the power delegated to the federal government by the Constitution of the United States. In this state, such proceedings are wholly dependent upon the organic and statutory law just quoted. Legislation as to interstate rendition of fugitives being within the power of Congress, the federal law upon that subject is paramount to state Constitutions and statutes. (People v. Meyering, 357 Ill. 166 [ 191 N. E. 318 ]; Keeton v. Gaiser, 331 Mo. 499 [ 55 S. W. (2d) 302 ]; Ex parte Owen, 10 Okla. Cr. 284 [ 136 Pac. 197 ; Ann. Cas. 1916A, 522]; Ex parte Bergman, 60 Tex. Cr. 8 [ 130 S. W. 174 ]; Ex parte Goodman, 79 Tex. Cr. 67 [ 182 S. W. 1120 ]; Waller v. Jordan, — Ariz. — [ 118 P. (2d) 450 ]; State v. Parrish, Ala. [ 5 So. (2d) 828 ]; State v. Grosch, 177 Tenn. 619 [ 152 S. W. (2d) 239 ]; In re Sanders, (Ohio App.) 31 N. E. (2d) 246; People v. Bell, 372 Ill. 572 [25 N. E. (2d) 45]; Ex parte Roberts, 186 Wash. 13 [ 56 P. (2d) 703 ].) That being true the act here in question must fall as it is clearly inconsistent with the provisions of the Constitution of the United States and the act of Congress above-mentioned. It wholly dispenses with all of the requirements *680 therein set forth and permits a person to be taken from one state to another by the officers of the state claiming the person by merely establishing identity and violation of parole by a peace officer of the asylum state. The rule announced in the majority opinion is applicable to cases other than those of paroled convicts. It announces the broad general rule that before a demand for extradition is made by the demanding state, the federal laws with reference to extradition are not operative, and the state may make any regulation it wishes in respect to the matter. In so holding it relies upon a Florida case (Kurtz v. State, 22 Fla. 36 [ 1 Am. St. Rep. 173 ].) The majority opinion states, quoting from the Kurtz case: “ ‘Neither the Act of Congress nor the Constitution of the United States relate [sic] in any way to fugitives from justice from one State to another, or makes any provision concerning them until a demand has been made for their delivery. “The demand is evidently the initial point at which the constitution and the law begin to operate, and prior to this neither has any application to the ease.” Id. While legislation by a state against the constitution and the law of Congress, impairing the full operation of their provisions, would be nugatory, yet it is competent for a state legislature to enact laws on the subject at a stage prior to that which the constitution and federal laws have designated as the time at which they take cognizance of it, provided that such enactments are not inconsistent with the end named in the Constitution. ’ ” (Emphasis added.) If that rule is applied, the federal laws with relation to extradition are completely ignored and rendered wholly ineffective for any purpose. To bring the rule into operation requires only that the governor of the demanding state make no demand, thus no extradition proceedings are initiated. Then the peace officers of that state may go into the asylum state and take the prisoner to their state. Under this practice or procedure extradition as now known would be a thing of the past. It is conceded in the majority opinion that the federal procedure for extradition embraces paroled convicts who breach the terms of tiiéir parole. Therefore, the removal of them from this state to another state is in fact extradition but all of the federal law formalities are disregarded. In any event, it cannot be denied that the rule as stated embraces all others charged with crime who are undeniably embraced in the federal extradition laws. To say that before a demand is made no *681 extradition exists, and therefore the federal laws need not be observed, is to permit that to be accomplished indirectly which could not be done directly. The fact is that if the prisoner is taken from the asylum state to the state where he is charged with the crime, he is beyond doubt extradited, and if extradited, the federal law must be followed, and a state law eliminating all of the federal requirements is a clear invasion of the powers of Congress.
Not only is the language quoted from the Kurtz case wholly dictum, but the court there had in mind an entirely different situation. In conformity with the rule that a state may adopt statutes in aid of but not inconsistent with the federal laws, it had in mind state laws that provided for the arrest of fugitives from justice by the officers of the asylum state pending the initiation and completion of extradition proceedings in conformity with the federal laws. It was contemplated that the extradition that followed would be in conformity with the federal law. Such a law is of course not inconsistent with the federal law being merely in aid of it. But where, as here, the complete process of extradition is permitted without following the federal requirements, it cannot be said that the state act is in aid of the federal law.
In my opinion, the California statute in question is in direct conflict with the provisions of the federal Constitution and statutes, and is therefore invalid, and the writ of habeas corpus prayed for by petitioner should be granted and petitioner discharged from custody.
Petitioner’s application for a rehearing was denied August 27, 1942. Carter, J., voted for a rehearing.