Bisbee daily review., 1906-03-23
IMPORTANT CASE
 IN PHOENIX COURT
IT INVOLVES THE PAYMENT OF EXPENSE OF ExTRADlTioN
 OF CRIMINALS.

Douglas. Ariz., Mar. -(SpeciaD-l Among the matters heard in the dis trict court of Maricopa county on Saturday was the demurrer of the ter ritorial auditor to the petition o5 Frank Murphy, former sheriff of Pima c,unty, against the auditor to compel him to audit a claim of the petitioner for his expenses incurred in the re turn of John J. Harcourt from Call fornia to Tucson two years ago.
 This is a test case for the settle nent of a most important matter. Not only will the validity of the petition er's claim be finally determined, but it will also be determined whether a fugitive from Arizona is safe once ne is out of the boundaries of the ter rftory. whatever his crime may be.
 Formerly, in cases of this kind, the expenses of the agent of the territory were paid by the county from which he was sent. It was decided not SO very long ago that there was no war rant for the payment of such claims by the counties; at any rate, there is nothing in the statutes authorizing such payment, and it is well estab- lished principle that silence of the statutes does not give consent for the disbursement of the public funds.
 In the argument on the demurrer, the petitioner was represented by Charles Bienman, of Tucson, who re lied on the following two paragraphs of the penal code, under the title Proceedings Against Fugitves From Justice:"
 When the governor of the terri tory in the exercise of the authority conferred by section 2, article of the Constitution of the United States, or by the laws of this territory, shall demand from the executive authority af any state or territory of the United States or of any foreign government the surrender to the authorities of this territory of fugitive from jus tiee the accounts of the person em- ployed by him for that purpose shall be audited by the territorial auditor and paid out of the territorial treas ury." No compensation, fee or reward of any kind can be paid to or received by a public officer of the territory or other person for a service rendered in procuring from the governor the de 1nand mentioned in the last section for the surrender of the fugitive or for conveying him to this territory or detaining him therein except as pro vided for in the preceding section
 These paragraphs are exactly the the same as those of the California code but there is an additional para graph in the Arizona code on which the territory relies in this case. It is as follows:
 The governor of this territory may irs cases authorized by the Corstitu- tion and the laws of the United States appoint agents to demand of the ex- ecutive authorities of other states or territories or from the executive au' thority of any foreign government any fugitive from justice or person charged with treason; and the ae' counts of the agents appointed for that purpose shall, unless otherwise directed by the governor, be audited by the territorial auditor and paid out of the territorial treasury" .-
 In this case 1t has been otherwise The claim of Sheriff Murphy was first presented during the administration of Governor Brodie, by whom the de mand for the return of Harcourt had been made. At the time of the issu ance of the warrant Governor Brodie had believed that the expenses of the extraditjon would be borne by Pima county, as these expenses had always been borne by those counties whers the presence of the fugitive had beer desired.
 Then, as now, the territory, in de lending itself against the claim of the sheriff, stood upon the following para graph of the warrant:
 All persons are therefore requested to permit the said agent, at his owI proper cost, to remove the said JohI F. Harcourt and to transport him, un molested into this territory, the saiC agent peaceably and lawfully behav ing; the territory not to be liable for any expenses incurred in the pur suit arrest and return of said fugi tive, except as may hereafter be ap proved by executive authority.
 The matter was gone over yer7 fully on Saturday by Attorney Genera Clark for the territory, and by MT Blenman for the petitioner. MT. Blen man said that under paragraph 130 there was absolutely no other way b. which the sheriff could receive com pensation than from the territoria treasury.
 Judge Kent indicated a desire tt find a way to grant the writ. He sait that NIT. Blenman's presentation O the matter had been very fair ant TSaSODaDie, and d very unIOTlunat' condition would confront the territor. if it should be found that the law pre- cluded the payment of the expense of those who go beyond its bounda ries in pursuit Of fugitives from jus tice. In that case fugitive from Ar zona would be as safe in Californi or New Mexico as if he had takel refuge in one of those Central Amer can countries with which we have n extradition treaties.
 A decision in the case will prot ably be rendered next Saturday.