It has been said that the regularity of extradition proceedings may be attacked only in the asylum State. 31 Am. Jur. 2d, Extradition, § 74, p. 980. The accepted method of such an attack, under the Uniform Criminal Extradition Act, the laws of Ohio and Pennsylvania, and federal law, is by application for writ of habeas corpus. The proper defendant upon such an application is the person maintaining custody over the applicant, and, where the constitutionality of a State statute is properly challenged upon application for writ of habeas corpus, a three-judge court need not be convened. McCarroll v. Faust, 278 F. Supp. 448 (E.D. La. 1968).
The Court is of the opinion that plaintiff may not circumvent the jurisdiction requirements of an action for writ of habeas corpus by framing the action as one for injunctive relief and naming as defendants citizens of the demanding State. Plaintiff is not in custody here nor under judgment of sentence of a court of this State. The traditional jurisdictional bases for filing a writ of habeas corpus do not exist here. Also, the named defendants are improper.
Moreover, plaintiff attacks a Statute inapplicable to his extradition. The challenged Pennsylvania Statute confers authority upon the Governor of this State to deliver to another State a person charged with a crime in the latter. Plaintiff's contemplated extradition, however, would be to this State, not from it. The extradition would be effectuated by the Governor of Ohio pursuant to Section 109-6 of the Ohio General Code, the Ohio statutory counterpart to the Pennsylvania law challenged herein.
Even disregarding the aforementioned deficiencies in the Complaint, which the Court deems sufficient to justify dismissal of the action for want of jurisdiction and proper parties, it must be concluded that no substantial constitutional question is presented which would warrant the convening of a three-judge district court. Ex parte Poresky, 290 U.S. 30, 54 S. Ct. 3, 78 L. Ed. 152 (1933). A lack of substantiality may appear either because the constitutional issue is obviously without merit or because its unsoundness so clearly results from previous decisions of the United States Supreme Court as to foreclose the subject. Herald Co. v. Harper, 410 F.2d 125 (8th Cir. 1969).
It may be acknowledged that Article IV, Section 2, Clause 2, of the Constitution and the implementing federal statute, 18 U.S.C. § 3182, authorize extradition by an asylum State only of persons present in the demanding State at the time of the crime charged. Strassheim v. Daily, 221 U.S. 280, 31 S. Ct. 558, 55 L. Ed. 735 (1911); Hyatt v. New York ex rel. Corkran, 188 U.S. 691, 23 S. Ct. 456, 47 L. Ed. 657 (1903). However, plaintiff's contention that the aforesaid constitutional provision acts as a limitation upon the extent to which the States may enact laws of broader scope pertaining to extradition runs contrary to all prior legal authority upon the question.
Most compelling is the prior pronouncement of the Supreme Court of the United States in the case of New York v. O'Neill, 359 U.S. 1, 79 S. Ct. 564, 3 L. Ed. 2d 585 (1958). In New York v. O'Neill, plaintiffs challenged the constitutionality of the Florida enactment of the "Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings", F.S.A. §§ 942.01-942.06, a statute also enacted in forty-one other States and the Commonwealth of Puerto Rico. Speaking through Mr. Justice Frankfurter, the Supreme Court rejected the contention that Article IV, Section 2, Clause 2, of the Constitution was restrictive of the power of the States to fashion reciprocal arrangements for the administration of justice and stated at pps. 5-6, 79 S. Ct. at p. 568:
"In Commonwealth of Kentucky v. Dennison, 65 U.S. (24 How.) 66, 16 L. Ed. 717, Mr. Chief Justice Taney, speaking of the obligation imposed by the Constitution upon the Governor of Ohio to deliver to Kentucky one accused of violation of the criminal laws of Kentucky, called attention 'to the obvious policy and necessity of this provision to preserve harmony between States, and order and law within their respective borders * * *.' 24 How. at page 103. The same 'policy and necessity' underline the measure adopted by Florida and forty-two other jurisdictions. Unless there is some provision in the United States Constitution which clearly prevents States from accomplishing this end by the means chosen, this Court must sustain the Uniform Act. The absence of a provision in the United States Constitution specifically granting power to the States to legislate respecting interstate rendition of witnesses presents no bar. To argue from the declaratory incorporation in the Constitution, Art. IV, § 2, of the ancient political policy among the Colonies of delivering up fugitives from justice an implied denial of the right to fashion other cooperative arrangements for the effective administration of justice, is to reduce the Constitution to a rigid, detailed and niggardly code. In adjudging the validity of a statute effecting a new form of relationship between States, the search is not for a specific constitutional authorization for it. Rather, according the statute the full benefit of the presumption of constitutionality which is the postulate of constitutional adjudication, we must find clear incompatibility with the United States Constitution. The range of state power is not defined and delimited by an enumeration of legislative subject matter. The Constitution did not purport to exhaust imagination and resourcefulness in devising fruitful interstate relationships. It is not to be construed to limit the variety of arrangements which are possible through the voluntary and cooperative actions of individual States with a view to increasing harmony within the federalism created by the Constitution. Far from being devisive, this legislation is a catalyst of cohesion. It is within the unrestricted area of action left to the States by the Constitution." (Emphasis supplied.)