The opinion
SHENK, J., Dissenting.
I dissent.
As a part of his return herein, the warden of San Quentin prison has filed the original warrant of extradition signed -by *86 the Governor of this state on January 17, 1939, and directing that the petitioner be delivered to the Texas authorities.
It is settled that the exercise of the executive discretion to issue the extradition warrant may be inquired into in habeas corpus proceedings. (Hyatt v. People, 188 U. S. 691 , [23 Sup. Ct. 456, 47 L. Ed. 657 ]; 12 Cal. Jur., p. 406.) But it has been held many times that the prisoner may not be deemed to have a voice in the matter of his extradition. (Roberts v. Reilly, 116 U. S. 80 [6 Sup. Ct. 291, 29 L. Ed. 544 ]; People v. Hagan, 34 Misc. 85 [ 69 N. Y. Supp. 475 ] ; People v. Klinger, 319 Ill. 275 [ 149 N. E. 799 , 42 A. L. R. 581] ; note, 42 A. L. R 585; State v. Saunders, 288 Mo. 640 [ 232 S. W. 973 ]. See, also, Carpenter v. Lord, 88 Or. 128 [ 171 Pac. 577 , L. R A. 1918D, 674, 680, and note].) Consequently, there would seem to be no necessity in this case to invoke the inverse function of the writ of habeas corpus to investigate the question whether the petitioner may exercise his preference to remain in San Quentin prison.
The duty to extradite a fugitive from justice upon a legal requisition from a sister state is imposed by article IV, section 2, of the United States Constitution. (Taylor v. Taintor, 16 Wall (83 U. S.) 366 [ 21 L. Ed. 287 ]; State v. Hall, 40 Kan. 338 [ 19 Pac. 918 , 10 Am. St. Rep. 200 ], and cases cited.) The leading ease of Taylor v. Taintor, supra, is to the effect that the duty is not, however, absolute, and that the laws of the asylum state may first be satisfied for any infraction of its penal provisions. The legislature of this state in 1937 (Stats. 1937, p. 1581), in adopting the Uniform Criminal Extradition Act, added section 1553.1 to the Penal Code providing that if a criminal prosecution has been instituted against the fugitive under the laws of this state and is still pending, the Governor, with the consent of the attorney-general, may surrender him on demand of the executive authority of another state or hold him until he has been tried and discharged or convicted and served his sentence in this state. The Governor has duly issued the extradition warrant and the attorney-general is demanding in this proceeding that the order be carried out."
The foregoing cited cases tend to establish that the present weight of authority is to the effect that when the Governor has duly exercised the discretion so vested in him by statute, there is no question remaining for judicial investigation in a habeas corpus proceeding. They seem to leave little to be *87 said to resolve the question adversely to the petitioner’s contentions when it is considered that the executive authorities have determined that the demands of this state on account of the prisoner’s infractions of its penal laws have been fully satisfied.
In my opinion the prisoner should be remanded subject to the warrant of extradition.