Habeas corpus is an extraordinary remedy and it should be pursued only in appropriate cases, when other remedies have been exhausted or are ineffective or nonexistent, to test the jurisdiction
of the tribunal whose ruling has restricted the liberty of the petitioner or to determine whether one's fundamental constitutional rights have been violated. Dorsey v. Gill, 1945, 80 U.S.App.D.C. 9, 148 F.2d 857, 871, 872, certiorari denied, 325 U.S. 890, 65 S. Ct. 1580, 89 L. Ed. 2003. Because of the vital importance which courts attach to the questions raised in a proceeding for the writ and the immediate attention which they give to it over other proceedings, it should not be resorted to merely for the sake of obtaining a summary disposition of a cause when adequate relief may be had by awaiting the outcome of proceedings which will take place in regular course. Ex parte Simon, 1908, 208 U.S. 144, 28 S. Ct. 238, 52 L. Ed. 429; Goto v. Lane, 1924, 265 U.S. 393, 44 S. Ct. 525, 68 L. Ed. 1070. To hold otherwise would dilute its effectiveness. Evidently for this reason it has been held that an application to the district courts for the writ before a warrant of removal has been granted is premature. See Ingraffia v. Keville, 1 Cir., 1932, 62 F.2d 301. But compare United States V. Peckham, D.C.N.D.N.Y.1906, 143 F. 625.
But this is not to say that under all circumstances in such cases applications for the writ will be denied by the district courts. Thus it may be granted where the commissioner has refused to allow bail,
or what amounts to the same thing, has demanded an excessive amount,
or the prosecution, by its failing to seasonably apply to the district court for a warrant of removal, is unjustly prolonging the confinement of the accused after he has refused to give bail. In addition even when a petition for the writ is prematurely brought and it is resisted by the prosecution, the court may treat it as an application for a warrant of removal, if both sides agree or intend that this be done. United States ex rel. Ripstein v. Powers, 2 Cir., 1922, 279 F. 735; United States ex rel. Greenberg v. Pulver, D.C.E.D.N.Y. 1932, 1 F.Supp. 909, affirmed in 2 Cir., 61 F.2d 1044; Barrow v. Owen, 5 Cir., 1937, 89 F.2d 476; 9 Cyc. of Fed.Proced. (2dEd.) Sec. 3945.
However those factors which would impel us to grant the writ are not present here and the parties have not intimated that the petition be treated as an application for a warrant of removal. The very issues sought to be raised by their petition may be submitted for the consideration of this court in the proceeding for a warrant of removal. Under the circumstances no injustice or fundamental unfairness will be caused by requiring the petitioners to await the hearing for the warrant of removal. See Singleton v. Botkin, D.C.1946, 5 F.R.D. 173.