Arizona republican., 1906-03-25
THE TERRITORY WINS
 IN IHE MURPHY CASE
The Governors Discretion in Matter of ExtraditiOn Expenses Upheld.

Judge Kent yesterday dismissed the application of Frank Murphy, former sheriff of Pima county, for a peremp- tory writ of mandamus to compel Ter ritorial auditor John H. Page to au- dit his claims for expenses incurred in bringing John r. Harcourt, the dia- mond swindler to Tucson for trial. This case was argued a week ago by Charles Blenman. of Tucson, for the applicant. and by Attorney General Clark for the territory.
 on account of the importance of the matter. Judge Kent rendered a written opinion. The applicant found autnori- ty for compelling the payment of his claim in tho following paragraphs 1901 and 1SO2-of the penal code
 when the governor of the terri tory in the exercise of the authority conferred by section ?, article 4 of the constitution of the United States or by the laws of this territory shall de- mand from the executive authority of any state or territory of the United States or any foreign government the surrend. to the authorities of this territory of a fugitive from justice, the accounts of the persons employed by him for that purpose shall be aud
  out of the territorial treasury"
 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- mand mentioned in the last section for the surrender of the fugitive or for conveying him to this territory or de- taining him therein except as provided for in the preceding section
 The territory relied upon the follow ing paragra aph-1290-as giving the governor discretion in authorizing the payment of claims of this kind;
 "The ~Overnor of this territory may in cases authorized by the cOnstitu- ton and the laws of the United States appoint agents to demand of the exec utive 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 accounts of tn, agents appointed for that purpose shall. unless otherwise directed by tho governor, be audited by the territoria auditor and paid O. 70 -',n territoria treasury"
 The territory also took the ground that the following paragraph in thu warrant issued to Sheriff Murphy a' agent by Governor Brodie absolVe' the territory from any financial re sponsibility in the matter:
 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 sai' agent peaceably and lawfully benav ing; the territory not to be liable fo any expenses incurred in tho pursuit arrest and return of said fugitive, eX cept as may be hereafter approved b, executive authority.'
 The court, in passing upon the case said that it was evidently the inten of the legislature in paragraphs 19O and 1902 to make claims of this kint cnarge against the territory, bu that paragraph 129O plainly clothe' the governor with discretion. Whil the governor in the warrant had no in terms followed the language of tn statute. his intent was apparent an' the effect was the same.
 The court said: ''It is urged by tn petitioner that the qualification, 'ex cept as may hereafter be approved b, executive authority is indicative O the intent that the charge shall be territorial one. and that hence ther has been no direction that it shall no be paid by the territory. This con struction can not be put upon thi provision. At best is was a reserva tion by the governor of such righ subsequently, to direct the payment O the expenses by the territory. It i not claimed that the governor ever ha approved the expenses or directe them to be paid. In the absence O any subsequent approval, the authori zation to the agent as it stands is on which directs that the expenses in cured shall not be paid by the terri tory"