Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-09-01
REFUSES TO QUASH WRII.
Judge Winchester Denies Motion Of
Attorney Dufer TO Quash Writ
Of Habeas Corpus.
Hearing Of the Case Upon its Merits
Set for Tuesday Morning Be
ssh. fore the Court.
Extended Arguments Upon the Ques-
ton Of Jurisdiction Made in
Court Saturday.

beas corpus, issued by Judge Winches-
ter on the application of Charles F.
Fay, of Portland, Ore, which was made
by Attorney Dufer, representing the
states attorney sof Waupaca, Wis, and
argued before Judge Winchester Sat
urday afternoon, was denied by the
judge, and the hearing of the case on
its merits set for Tuesday morning.
Mr.. Fay was in court Saturday, and
other persons interested present were
Attorney John H. Dllfer of Waupaca,
Attorney Martin H. Pipes of Portland,
Sheriff Hess of Waupaca, Attorney B.
w. Shaw of Mandan, and Assistant At
torney General Philbrick, who appears
in the case with the Wisconsin attor-
neys. @
The relations of the states Of Oregon
and, Wisconsin appear to be consider
ably strained in the case, Attorney
Dufer characterizing the attitude of
Governor Geer of Oregon, in attempt
ing to revoke his warrant after the
prisoner had left his state, as '.ridicu
lous" and Attorney Pipes for the plain
tiff, Fay. promising to show to the
court, the "yice and rottenness' of the
procedure against Fay, if the court
would permit the merits of the case to
be gone into. B (; @.. 3,7@ z5 ,,.t
There promises to be an interesting
hearing tomorrow when the merits Of
the case are argued, to determine
whether Fay is legally restrained of
his liberty by the Wisconsin authori-
ties. s.s .lssi
+ Attorney Pipes for Fay argued the
case at considerable length Saturday,
claiming that the courts Of this state
had jurisdiction in the matter. He
argued that, not having been in Wis
consin at the time the crime was com
mitted, nor since that time, the crime
charged against Fay did not come
within that class provided for by the
.extradition laws, and that Fay was not
a fugitive from justice from the state
of Wisconsin. He said taht the office
of governor in issuing warrants up
ion eKtradition papers was purely min
isterial, and that where the law pro-
.vided that a certain fact should exist
before warrant was issued upon ex-
tradition papers, and that fact did not
exist, then it was beyond the power OF
the governor to act, and his actSwas
void and null. In the case in point,
he argued that Governor Geer had not
had the power to issue a warrant for
Fay, he not being a fugitive from jus
stice. He cited numerous authorities
upon the point. I, 81 II. &.
Attorney Dufer argued that no court
in an intervening state had power to
release a prisoner on habeas corpus or
other proceedings, and pointed out that
ii this were not the case, writs Of ha-
3beas CORPUS could be sued out in every
district and every. county Of an inter
vening state and the progress of a pris-
oner from one state TO another could
be delayed inte1minably s5.. y
At the conclusion of the argument
Judge Winchester denied the motion Of
the Wisconsin attorney to quashs the
writ The hearing tomorrow will be
TO determine whether the writ shall be
discharged and Fay be delivered back
into the custody of Sheriff Hess or
whether he shall be liberated to return
to Oregon.