*1 to annexation was therefore a bar Countryside’s petition Countryside’s to objections peti- owners’ property should have been overruled. tract The of the of the unimproved owners allegations of their would value property be they deprived to inability Countryside provide because of assumed service industrial purposes, sewer and water for adequate to zone refusal of Countryside and because the assumed use, for basis any legal industrial do not afford property these If property for denial of Countryside’s petition. have Countryside, they do not wish to be annexed to owners but have they be in the referendum election to heard right because defeat Countryside’s simply no to petition right not wish annexed to that do to be they city.
The owners that their lies these property allegations annexed and of the to property sought perimeter the neces- would not destroy that exclusion their property facts, is to the contrary sary clearly physical contiguity, to adjacent is immediately appears property it would destroy contiguity to exclude Countryside the land the north of lying property. herein, are For reasons set forth we trial that the court erred Countryside’s peti- dismissing The county tion. court Cook County therefore reversed and the cause remanded with directions objections Countryside’s overrule petition. remanded, with Reversed and directions. (No. 36756. Ritholz, ex D. vs. Benjamin rel. Appellee, of Cook County, G. Sheriff Appellant. Sain,
Frank March Opinion January Rehearing denied filed 1962. *2 Hershey, C.J., dissenting.
Daniel P. Ward, State’s Attorney, of Chicago, (John Gallagher, R. Thompson, T. Assistant State’s James for Attorneys, counsel,) appellant.
n Marshall of Chicago, (John J. Cogan, Korshak, for Charles D. of counsel,) appellee. Snewind, Daily court: delivered Mr. Justice relator, Ritholz, arrested for D. was Benjamin pur Sain, sheriff Frank G. of extradition poses by respondent, rendition warrant of Cook County, authority issued the Governor of Illinois the requisition A corpus of habeas Governor writ petition Michigan. in the criminal court of Cook County was filed relator issued, after test the his arrest and the writ legality of filed a return Governor’s respondent alleging n warrant. By petition challenged supplemental such extradition and to sufficiency papers petition, legal, filed return that the were respondent alleging that he was charged relator was a justice, fugitive and that with an offense laws Michigan, against After named supporting papers. *3 the and ap discharged respondent hearing, review sec to this court for as authorized directly by pealed Extradition Act. (Ill. 10 of Criminal Uniform 60, The issues Rev. Stat. 1959, 27.) chap. par. presented issued by are the rendition warrant of sufficiency or demand of Illinois and of the requisition pre Governor Michigan. the Governor of sented by of uniform act demand Section our “No provides in a crime for the extradition of with a person charged in shall be the Governor unless by another state recognized * * * in that the accused was alleging, writing present of at the time the commission of state demanding crime, state,” and that thereafter he fled and alleged alternative, ac- further that the demand be specifies, a an indictment or information of companied (1) by copy affidavit; an made of affidavit by (2) copy supported awith of warrant before a magistrate together copy or of a of issued thereupon, (3) copy thereof, in to execution conviction of sentence or imposed the executive authority a statement by with gether claimed has escaped state that the demanding bail, the terms probation confinement or has broken 60, As pointed Rev. Stat. (Ill. 1959, chap. par. parole. Ill.2d 87, out in ex rel. Hackler found same as those these are essentially requirements U.S.C.A., statute, sec. 3182,) Federal (18 comparable noted, which, alternative we “appears for the third except convict, to have been added to meet the case escaped where the a situation necessarily encompassed showing' is to be made indictment or affidavit.” by terms, here, the sec-
The its was based by demand recited, date of July i960, ond alternative for it warrant,” that relator that it and appears “complaint with “stand under the laws charged” [s] and bribe to officers crime giving public offering intent influence their acts. warrants issued Gov
With to rendition regard Illinois, “If ernor of section of our act part: provides should be the Governor decides that demand complied * * * with, arrest, The war a warrant of shall sign rant recite the facts necessary must substantially of its issuance.” Rev. Stat. (Ill. 1959, chap. validity demand, the war the recital of the par. 24.) Adhering “The Illinois stated that rant here issued Governor me the arrest and de demands of Governor of Michigan from justice, as a D. Ritholz livery Benjamin fugitive and laid before me copy Complaint and has produced authentic the said Governor certified as Warrant its did not show on authenticated” etc. duly *4 however, an face, was based affi that the upon complaint the jurisdictional require davit before a one of magistrate, alternative fixed section set forth in the second ments defect, while, the the' in the absence of matter And curing to recite jurisdictiotia! rendition warrant the failure 172 fatal, Ruka on its face is ex rel. (See: People
requirement vina, the Sain, view of v. 22 Ill.2d we adhere to the 546,) may deficiencies in the rendition warrant majority legal cured, in the discharge be habeas corpus proceedings or with the return of the sheriff fugitive, by including the warrant at the which producing hearing papers upon was justified. was issued and which show that the warrant 88-89; Ill.2d 78, ex rel. Hackler v. 17 Hermann, Lacondra v. Ill. 343 613-614. in evi
In the instant case introduced face on the dence cured defect respondent warrant was based complaint upon showing foreclosed affidavit and thus made before magistrate, relator’s attack on such For ground. upon first intro time on relator to the evidence objects appeal laid for duced on the that no foundation was ground proper its Not does such come too objection introduction. only late, but the into evidence introduced papers supporting This were certified a certificate of State. Secretary evidence. was a certificate for their admission into proper Ill. Rev. Stat. 1959, chap. 51, par. 56. it is true that a ordinarily
While Governor’s warrant on its face makes case regular prima against facie therein, Sain, named ex rel. Borelli v. (People Ill.2d ex rel. Mack v. Ill. 322, People Meyering, 355 that the is likewise true Governor’s warrant is not 456,) the entire but is in the merely step proceeding process extradition, limited, the effect of which may impaired even non-existence or destroyed by impropriety matters. other ex rel. necessary procedural (People Maypole State, Ill. cf. Steadman v. Ala. Meyering, 589; Here, moreover, So. 2d App. brought sufficiency requisition expressly attack, whether, thus raising question of section Governor of Illinois language the demand made justified “recognizing” him.
173 accuracy strictness and for extradition the same proceedings None indictments. as in required proceedings theless, enjoys liberty fugitive of the right personal him the right under the States constitution gives United substantially in that he be require an extradition proceeding the laws and in faith with an offense good charged against State, of the an that he be afforded opportunity demanding and that is not in from justice, show he fact fugitive ex rel. be in form. demand made due and (People proper I.L.P., Baldwin, Leach from 604; v. Ill. Fugitives 20 sec. In latter a relator Justice, custody regard, virtue of warrant issued insufficient requisi upon ex rel. may habeas corpus. discharged People LaRue v. Ill. Meyering, out,
As previously the demand pointed presented 21, Governor under date recited Michigan, July i960, as its basis and warrant” the relator whereby “complaint stood with the crime of officers. charged bribing public However, this recital is contradicted by tried, introduced evidence that which show relator was convicted, 6, sentenced and fined on August officers, crime of such bribing conviction and public sentence was to and appealed affirmed Su- finally Court of preme on March that he was i960, admitted bail the outcome of his and that pending appeal, he became a fugitive justice of that State his failure to surrender himself his the affirmance of con- viction.
To overcome the contradiction between the recitals of the demand and the supporting papers, respondent, citing People ex rel. Babb, Holmes Ill. ex O’Neil, rel. Westbrook v. Ill. 324, asserts that al convicted, though have been may he still “stands charged” extradition, crime for so purposes long as the judgment of conviction remains unsatisfied. While law, is indeed is no cure for the contradiction be- the recitals the demand and the
tween supporting papers. case, true the Holmes and we assume the same was case, O’Neil there such because was no contradiction facts, as recited in our Ill. at reflect opinion (414 492,) certified the demand of the of New York itself Governor sentenced, that the accused was “convicted of such crime broke the terms his from the justice and fled parole, Here, contrast, recited that State.” the demand by way *6 a com that relator stood of a crime virtue of by charged warrant, reflected and whereas the plaint a that he stood of the crime virtue of charged by judgment MacLeod, conviction. of Cf. LaSasso v. 136 N.J.L. A.2d 1948, 56 that a mere
Nor do we believe the contradiction is in ex rel. Hackler As out technicality. pointed in Ill. 2d the third alternative section 78, 87, Act, viz., of Extradition that our Uniform Criminal of convic demand be by judgment accompanied copy thereof, in tion or of a sentence execution together imposed the executive the demand with statement by authority State that claimed from confine ing escaped bail, ment or has broken the terms of his or probation pa role, was added meet situations not encom necessarily indict where the is made jurisdictional showing passed ment affidavit before a And we think the magistrate. Otherwise, should in the demand. same distinction appear there would no purpose delineating jurisdic separate bases, if the of a demand that a relator tional language and warrant is to be construed stands charged complaint situation, it does every obviously as encompassing Here, for the recital with do. clarity example, not that relator stood a crime demand with com charged and warrant on July i960, requires plaint implica clear, tion from the at all that supporting papers, crime crime referred to ivas the same for which the relator and convicted been tried August had Had conviction, as our statute demand recited the judgment cases, recital, together such such contemplates that had broken statement the executive relator authority bail, im- all need for terms his would have obviated plication recognition speculation permitted the demand to rest on certainty. our
For reasons stated the requisi- of the or demand was insufficient to the issuance justify warrant, rendition shown which is here only authority the relator. detaining Accordingly, criminal court of Cook County discharging affirmed.
Judgment affirmed. Mr. Chief Hershey, dissenting: Justice Although holding cured supporting warrant, defect in the Governor’s the court concludes that the writ of habeas allowed because of corpus properly a “contradiction” between the demand of Governor of and the such demand. papers accompanying court reads section our uniform act as precluding Governor of Illinois from the demand under recognizing *7 these circumstances. this result is my justi- opinion, fied the by of section language 3, and construe our statute as this result raises serious requiring constitutional problems the court fails to recognize. In the first the demand place, Michi- Governor of gan does literally with the comply our requirements of statute. With to what must respect documents accompany demand, alternatives, section three specifies compliance with one which any is sufficient. The second alternative is “a of an affidavit made before a copy magistrate, together with a warrant which was copy any issued thereupon.” Here the demand was by copies of such affi- accompanied davit and warrant. Thus there was literal with compliance the statute. recitals of the demand
The “contradiction” between demand, not exist. and the does it is ac- which, state what is not incidentally, required it recites that is by complaint by, accompanied companied and warrant. It aby and warrant. complaint accompanied were, contradiction, and, it if there even Thus there is no fact, was, in as the demand be immaterial so long would one of the alternative satisfying accompanied by papers Since the demand accompanied statutory requirements. in the form of an which is a warrant and by complaint in fact a there has been affidavit made before a magistrate, alternative, the second statutory literal with compliance an affidavit made before a “a namely, magistrate copy there- which was issued with a any together copy and, all that the statute had This is requires upon.” more, it would have demand been accompanied nothing But, been the demand was also accom- sufficient. because that relator had been another affidavit indicating panied bail, his had broken the terms of court convicted and that the third alternative should have statutory concludes recite. been and that the demand should here so employed that, holds is even de- actually What though court second mand of Governor of Michigan complied statute, alternatives documentary provided and, alternative would have been more third apropriate, circumstances, under these the Governor of Illinois should But the not have the demand. statute recognized permits alternatives; it use of of the three does not require Illinois refuse the demand un- Governor of to recognize al- less the Governor of used particular this court. ternative deemed most appropriate The rendition warrant considered with the supporting- evidence showed case for clearly prima facie extradition and a substantial with all compliance statutory From the warrant and requirements. supporting papers, *8 is that there was an information apparent supported by
177 before affidavit sworn to magistrate as well as an affidavit issued, authentic certified as which warrant upon also showed The fact that the papers Governor. demanding contradict, of bail does not negate, a conviction and violation is shown justifying render insufficient the other grounds warrant; if it anything, strengthens suance rendition crime” within the A with a them. remains "charged and extradition statutes of the Federal Illinois meaning even after and even while on from such conviction parole Babb, Ill. conviction. ex rel. Holmes v. 490; (People O’Neill, ex Ill. rel. Where People Westbrook the rendition and the evidence supporting exist, show one or more statute to grounds required by is this sufficient.
Here there is no that is with a question charged crime in the State of there no Michigan; that question State; is a fugitive from there is justice that no ques- tion but that the is entitled to his return. State this, Despite that its majority decision is not protests based a mere upon technicality. my not opinion, only the decision based but is a technicality, upon technicality created the court and no justification having statute.
Moreover, the construction here court to given section of our act uniform serious suggests constitutional questions clear, recognized It is majority opinion. held, and this court has always that interstate rendition is based constitution and laws of United States. Thus, in ex rel. Hackler v. Ill.2d we said, at the Federal act page that “establishes ‘a com plete, expeditious summary procedure returning * * * fugitive from the to the asylum demanding State’ the statute should be accorded a liberal construction the return of the accomplish fugitive summarily.” We further stated that “While it is generally recognized enact States mav and in legislation aid ancillary of this *9 and its States constitution supple- United provision that such well settled Federal is also mentary legislation, constitutional with the enactments must not be inconsistent the authority exercise of or restrict summary purpose in conflict State of the executive. legislation [Citations.] of the Federal constitutional with the intent and meaning is void.” provision
Here, as re- construed our statute majority have a result of what would quiring exactly opposite the constitution and laws been result under It is in the absence of State United States legislation. statute, construed, can be sustained so difficult to see how of” the Federal constitution as to and aid “ancillary Moreover, although the court’s opinion, statutes. implicit therein, a further constitutional ques- nowhere recognized restrict the concerning legislature power what demands of the executive with authority respect may recognize. the trial court should my opinion, the cause remanded with directions to quash
reversed and and remand the relator to custody. the writ
(No. 36800. vs. ex rel. Alice Flanagan, Appellee, Joseph J. Court of Chicago, Clerk of Municipal McDonough, Appellant. March
Opinion Rehearing denied January 1962. filed