(dissenting.) The judgment of the special term was right, and on several grounds should be affirmed.
1. The relator, as district attorney for the county of Columbia, had no call to leave the county and country, and to go into a foreign jurisdiction in pursuit of a fugitive. It was no part of the duties imposed upon him by virtue of his office. It became his duty to attend the criminal courts of the county, to give counsel to, and prepare the indictments for, the grand jury, and to attend the trials of the indictments so found. When an indictment was found against a person not already a prisoner, it was very proper for him to issue a bench-warrant, and deliver it to a sheriff, directing the arrest of the person; and from that point in the case he had no duty until the party was arrested, and in custody. He was not called upon to accompany the sheriff upon a hunt for the fugitive. The statute did not constitute the district attorney an arresting bailiff; and it did not charge him with those duties which. *755belonged to the executive department of the state, or of the United States government. The extradition of fugitives from justice from foreign countries belonged to the United States government. The people of the county of Columbia had no more interest in the return of the fugitive than had the people of any other county of the state. Because the crime was committed within that county, it did not throw the burden on the tax-payers of that ■county to enforce the provisions of a treaty between the general .government and a foreign province. The county of Columbia could make no demand for his return. If the district attorney had any duty in connection with such a case, it was only to furnish proof to the executive department of the United States that there was a proper case upon which the government should act. When the relator got beyond the limits of the United States into Canada, all the functions of his office ended. He did not carry with him the powers which he possessed while in the county of Columbia, but was nothing more than an individual, acting upon the impulses of his individual desires. If he assumed to do duty for the United States government, it became and was a matter between him and that government,—not a matter for which the taxpayers of Columbia county were liable. It would be much safer to hold that the district attorney, in absenting himself from the county by which he was employed, to go into a foreign country, was neglectful of his home duties. It is to be presumed that he was needed within the county for which he was elected. It does not appear how long a time he was absent in pursuit of Oadby; but, assuming that he was rightfully there at all, he could continue his absence for an indefinite period, leaving the affairs at home to take care of themselves. Upon no principle whatever can his journey into Canada be defended. As well it might be claimed that the sheriff of the county of Columbia was expected to go in person on the trial of a fugitive, and attend to the execution of the requisition, as that the district attorney of a county should so do. When the relator sought to prosecute the proceedings in the courts of a foreign jurisdiction, he took an extremely comprehensive view of his duties as prosecuting attorney for the county of Columbia.
2. There was and is no liability on the part of Columbia county to pay this bill. There is no written statute or precedent for it. There certainly would be no justice in a law or precedent which required it. The only authority for the extradition of runaway criminals resides in the general government, and the power and authority comes by virtue of treaty stipulations. The high contracting parties may agree, as between themselves, to any terms or conditions; but their action cannot create obligations upon any person, province, or city. The provision in the treaty, copied in the writ, that the expenses of reclaiming a criminal shall be borne by the party making the application, has reference only to the parties to the treaty. It has no reference to the person or official who may enter the complaint; so that the regulation by the executive department of the state, requiring that the application shall come from the district attorney of the county in which the indictment is found, with his consent that the expense shall be charged to his county, does not and cannot create a liability against the county. It relieves the state from the burden, but it casts no legal burden upon any other locality. And then, again, if it had the effect to fasten the expense upon the county, it ould have no reference to the personal expenses of a traveling district attorney through a foreign country, or the expense of litigations before foreign courts.
3. A demand of this kind ought not to be enforced by the arbitrary process of mandamus. It ought not to be enforced by any process, unless the law giving it validity is clear and unquestionable. If this precedent is made and established, the result which may come can hardly be estimated. The small bill of S4,013 will be only a premonition of future progress in the same direction. Probably there is not a county in the state but has the same occasion for its local officers to travel in foreign parts. A district attorney who ac*756eepted the views maintained by this decision would have an expensive department for his county. There may come a day when an officer of less virtue and integrity of purpose than the relator will secure the office, and who, under the cover of a chase for a fugitive from justice, may, at the expense of.the county, take an expensive travel, there being no limit to the line of pursuit. It was well said by the learned justice at the special term that, “if this construction can be maintained, it would not only be the privilege, but the duty, of the district attorney to follow a fugitive, not only into another state, but to another continent; and his pursuit would only be limited by the extent of the extradition treaties between the United States and foreign countries.” The proposition seems utenable, almost, from its absurdity. If this bill can be enforced against the defendant, any district attorney may, at the expense of his county, at his option, follow any fugitive who is indicted within his county to the uttermost parts of the earth. The right to enforce the bill against the county would not depend upon his success. The right to be reimbursed does not depend upon the success of the enterprise. In this case, if the relator had failed to capture his man, his claim to be reimbursed would be as good as now. I conclude that the order of the special term ought to be affirmed, with costs.