Dissenting Opinion: Field, J.

its sale or use; clearly not without compensation to the owner. Regulations of its sale and restraints against its improper use undoubtedly could be made, as they may be made with respect to all kinds of property; but the prohibition of its use and sale is nothing less than confiscation. As I said in Bartemeyer v. Iowa, 18 Wall. 129, 137, with reference to intoxicating liquors, so I say with reference to this property, I have no doubt of the power of the State to regulate its sale, when such regulation does not amount to the destruction of the right of property in it. "The right of property in an article involves the right to sell and dispose of such article as well as to use and enjoy it. Any act which declares that the owner shall neither sell it nor dispose of it, nor use and enjoy it, confiscates it, depriving him of his property without due process of law. Against such arbitrary legislation by any State the Fourteenth Amendment affords protection. But the prohibition of sale in any way or for any use is quite a different thing from a regulation of the sale or use so as to protect the health and morals of the community." The fault which I find with the opinion of the court on this head is that it ignores the distinction between regulation and prohibition.

Error to the Supreme

WALKER V. PENNSYLVANIA, No. 1303. Court of the State of Pennsylvania. Argued January 4, 1888. Decided April 9, 1888. MR. JUSTICE HARLAN delivered the opinion of the court. The questions presented in this case do not differ, in any material respect, from those determined in POWELL V. PennSYLVANIA, just decided. The principles announced in that case necessarily require an affirmance of the judgment below.

Affirmed.

MR. JUSTICE FIELD dissented.

Mr. D. T. Watson and Mr. W. B. Rodgers for plaintiffs in error.

Mr. Wayne Mc Veagh for defendant in error.

No mode is provided by the Constitution and laws of the United States by which a person, unlawfully abducted from one State to another, and held in the latter State upon process of law for an offence against the State, can be restored to the State from which he was abducted. There is no comity between the States by which a person held upon an indictment for a criminal offence in one State can be turned over to the authorities of another State, although abducted from the latter.

A, being indicted in Kentucky for felony, escaped to West Virginia. While the governor of West Virginia was considering an application from the governor of Kentucky for his surrender as a fugitive from justice, he was forcibly abducted to Kentucky, and when there was seized by the Kentucky authorities under legal process, and put in jail and held to answer the indictment. Held, that he was not entitled to be discharged from custody under a writ of habeas corpus from the Circuit Court of the United States.

THE Court stated the case as follows:

On the 9th of February, 1888, the governor of West Virginia, on behalf of that State, presented to the District Court of the United States for the District of Kentucky a petition, representing that during the month of September, 1887, a requisition was made upon him as governor aforesaid, by the governor of Kentucky, for Plyant Mahon, alleged to have committed murder in the latter State, and to have fled from its justice, and to be then at large in West Virginia; that pending correspondence between the two governors, and the consideration of legal questions growing out of the requisition, and during the month of December, 1887, or January, 1888, the said Plyant Mahon, while residing in West Virginia, was, in violation of her laws, and of the Constitution and laws of the United States, and without warrant or other legal process, arrested by a body of armed men from Kentucky, and by force and against his will, conveyed out of the State of

Statement of the Case.

West Virginia into the county of Pike, in the State of Kentucky, and there confined in the common jail of the county, where he has been ever since, and is deprived of his liberty by the keeper thereof.

The petitioner further represented that on the 1st of February, 1888, he as governor of West Virginia and on her behalf, made a requisition upon the governor of Kentucky, that Plyant Mahon be released from confinement, set at large, and returned in safety to the State of West Virginia; and that the demand was, on the 4th of that month, refused on the ground, among others, that the questions involved were judicial and not executive. The petitioner, therefore, in alleged vindication of the rights of the State of West Virginia, and of every citizen thereof, and especially of the said Plyant Mahon thus confined and deprived of his liberty, to the end that due process of law secured by both the Constitution of the United States and the constitution of the State of West Virginia, and the laws made in pursuance thereof, might be respected and enforced, prayed that the writ of habeas corpus be granted, directed to the keeper of the jail, commanding him to produce the body of said Plyant Mahon, together with the cause of his detention, before the judge of the court at such time and place as might be designated, and that judgment be rendered that said Plyant Mahon be discharged from said confinement and custody, and be safely returned within the jurisdiction of the State of West Virginia. At the same time another petition was presented to the court by one John A. Sheppard, representing that he was a citizen of West Virginia, and setting forth substantially the facts contained in the petition of the governor, and praying for a like writ of habeas corpus. Subsequently the name of Plyant Mahon was substituted for that of John A. Sheppard, and the proceedings on the petition were conducted in his name.

The court ordered the writ to issue, directed to the jailor of Pike County, requiring him to produce the body of Mahon before the District Court of the United States in the city of Louisville on the 20th of the month, and there to abide such order as might be made in the premises. The jailor of the

Statement of the Case.

county, Abner Justice, made a return to the writ substantially as follows: That he held Plyant Mahon in custody and confined in the jail of Pike County by virtue of and in obedience to three writs issued by the clerk of the Criminal Court of the county under its order, each for the arrest of Mahon to answer an indictment pending against him and others for the crime of wilful murder, alleged to have been committed in that county, a crime for the trial of which that court had full jurisdiction, and commanding the officer arresting Mahon to deliver him to the jailor of the county; copies of which writs were annexed to the return; that under the writ of habeas corpus he was proceeding to the city of Louisville to produce the body of Mahon before the United States District Court there, when he was met on his way by the United States Marshal of the District of Kentucky, who, by virtue of the order of the District Court, took Plyant Mahon into his custody. He further returned that three indictments against Mahon and others for wilful murder were found by the grand jury of Pike County, Kentucky, and returned into the Circuit Court of said county at its September term, 1882, at which time that court had jurisdiction of the crime charged; that, by order of the court, made at each subsequent term, writs were issued by the clerk thereof for the arrest of Plyant Mahon to answer the indictments, until the Criminal Court of the county was established by act of the General Assembly of Kentucky in 1884, by which the jurisdiction previously vested in the Circuit Court was transferred to and vested in said Criminal Court; that, by orders of this latter court from term to term, writs were issued by the clerk thereof for the arrest of Mahon to answer the indictments; but none of them were executed upon him until January 12, 1888, when he was arrested in Pike County by the sheriff thereof, and delivered by him to the respondent, jailor of said county, in obedience to the writs which were issued, and under the command and authority of which he was held by the respondent as jailor in custody in the jail of said county, when the writ of habeas corpus was served upon him

The jailor subsequently, by leave of the court, made a fur

Statement of the Case.

ther return, in which he stated that a requisition was made by the governor of Kentucky upon the governor of West Virginia for the arrest and rendition to Kentucky of said Plyant Mahon as alleged in the governor's petition; that it was accompanied by a copy of the indictments referred to, certified by the governor of Kentucky to be authentic; that at the same time the governor appointed one Frank Phillips as the agent of the State to receive and bring to the State of Kentucky the said Mahon, as provided by law in such cases; that on the 30th of September, 1887, the governor of West Virginia returned said requisition to the governor of Kentucky, informing him that an affidavit, as required by the statute of West Virginia, should accompany the requisition before the same could be complied with; that thereafter the governor of Kentucky returned the requisition to the governor of West Virginia, accompanied by the affidavit required; that afterwards, about the 12th of January, 1888, Frank Phillips and others, with force and arms, violently seized the said Mahon in the State of West Virginia and brought him against his will into the county of Pike in the State of Kentucky, where the writs mentioned in the correspondent's original return were executed upon him by the sheriff of Pike County; that at that time no warrant for the arrest of Mahon had been issued or ordered to be issued by the governor of West Virginia in compliance with said requisition; and afterwards, on the 30th of January, 1888, he informed the governor of Kentucky that he declined to issue his warrant for the arrest of Plyant Mahon, in compliance with the requisition made upon him, because he had become satisfied, upon investigation of the facts, that Mahon was not guilty of the crime charged against him in the indictments; and that subsequently, on the 1st of February, 1888, the governor of West Virginia made upon the governor of Kentucky a demand for the release of Mahon from the jail of the county of Pike and his safe conduct back into West Virginia, with which demand the governor of Kentucky declined to comply, on the ground that Mahon was in the custody of the judicial department of the Commonwealth, and that the question of his release upon the grounds alleged in the demand