The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-08-15
1t STILL HANGS FIRE
AACoMBE REFUSES EXTRACTION
PAPERS IN NEELY CASE.


NEW YORK. Aug. H-Judge Lacombe,
OF the United States circuit court,
today refused to sign the writ
or e%tradition for Charles F. w.
Neelysson account of the action of Judge
wallace in granting an appeal to the su-
preme court in the habeaS corpus pro-
ceedings, but indicated that he did not
mink Judge Wallace understood the real
situation Of the case and he believed If
Il Went to the supreme court in it's pres
Sht shape the application for writ Of
habeas corpus would be denied A cita-
uon in the Nicely case, signed by Judge
'Nullam j. Wallace, was filed in the
clerks office Of the United States circuit
court today. The citation calls upon
Henry l.. Burnett, United States district
attorney, and William A. Hsnkle, United
states marshal, to appear before the SUI
preme court of the United States in
Washington on Sept. next, pursuant to
a citation Of appeal, wherein Charles F.
w. Nicely is the appellant and Marshal
denkle the appellee, to show cause why
the final order of the circuit court in the
said petition of appeal should not be cor
reeted and speedy justice should not be
done in that behalf
IN refusing to sign the expedition writ
Judge Lacombe said, In part:
1 came here this morning to sign an
order putting Nicely in custody under an
act passed by congress June last, provid-
ed the government made a disposition Of
the two suits under which orders Of arrest
still stand against him. 1 find, however,
that the exceptional zeal of the prisoners
counsel has produced a most peculiar
situation, complication that, so far as
1 know, has never before existed In con-
nectton with eXtradition cases. Judge
wallace, of this court has been applied to
Tor a writ Of habeas corpus on tho
ground, among others, that the act of
June 6 Is unconstitutional. Yhe writ of
habeas corpus was asked for to test the
constltutionality of the act and to re-
store to liberty a prisoner alleged to be
held under it. But the act of June
does not apply here. No one is restrained
or his liberty under that act. I never is
sued an order authorizing his holding I'M
DER the act of June 6. Now the proceed
lngs asking a writ of habeas corpus have
been refused and an appeal taken, and an
order issued by Judge Wallace demanding
the prisoner. Iadon't know upon what in
formation Judge Wallace acted. Nor can
see what else can happen to the appeal
when 1t reaches the United States sI-
preme court, except that they will dis
miss 1t as being brought upon INSULT
cient grounds Habeas corpus cannot be
aVailed of under the act until some pro-
ceedings are held under the act. And L
order of arrest in the civil suit to stand
and not to attempt to put him under the
provisions of the new act"
Judge Lacombe said he did not want to
sign papers dismisslng the old charges
and leaving the prisoner held Only on the
remaining order Of Judge Wallace, and
asked Mr. Lindsay If Judge Wallace
knew that the man was not held under
the act Of June 6. Mr.. Lindsay did not
answer directly bl1t said ba 1paxu tbo
prisoner was arrested in an order issued
by Judge Lacombe.
Gen. Burnett, by a request Of Judge La
connie stated his position in the case, say
ing he did not think Judge Wallace was
1ully informed Of the prisoners proceed
ngs. Mr.. Lindsay said all he wanted
was an opportunity to submit this case
10 the supreme court. In conclusion
Judge Lacombe said:
L certainly shall not take any action
which will turn over to a foreign coun
Try or another state, 1t matters not which,
a prisoner who Is held under an order Of
arrest in a civil or criminal action un-
til such actions shall have been discon-
tinued.
This position I have taken from the be-
ginning. I shall not allow the prisoner
TO be remanded until we have got through
with him. 1 shall assent to no propo-
sition that will take prisoners out Of the
jurisdiction of this court at the call Of
any tribunal on earth"
Judge LGcombe> then advised Marshal
HenkeI to keep the prisoner in custody
until the civil order, or under Judge Wal
lace's order as he chose, and to advise
with the district attorney about that.
me government was given until next
Monday TO decide what further action
they will take in the matter