Dissenting. — I think that Carpenter was not in custody within the meaning of the word *139as used in Section 1874, L. O. L. Under the parole statute, Session Laws 1911, page 152, a defendant to whom a parole is granted is permitted “to go and remain at large under the supervision of the court.” The question involved in State v. Goddard, 69 Or. 73 (133 Pac. 90, 138 Pac. 243, Ann. Cas. 1916A, 146), was whether a defendant convicted and paroled was entitled to appeal from the judgment of conviction. In the discussion of this question the court used the language quoted in the majority opinion. The case does not hold that a party at large on parole is in custody. Section 1874, L. O. L., was enacted in 1864. The first parole statute in this state was the act of 1905. The legislative assembly of 1864 could not foresee this later legislation and the word “custody” as used in the act of 1864 can only have referred to imprisonment.
In Beard v. State, 79 Ark. 293 (95 S. W. 995, 97 S. W. 667, 9 Ann. Cas. 409), the defendant had been convicted at a special term of court. The statute authorizing special terms of court was as follows:
“The judge of any Circuit Court may at any time hold a special term for the trial of persons confined in jail, by making out a written order to that effect and transmitting it to the clerk, who shall enter the same on the records of the court. ’ ’
The order providing for such special term directed that it should be held “for the trial of one Go van Beard, now held in custody, charged with a capital offense.” The court said:
“The particular question which we have to determine is whether or not the words ‘now held in custody charged with a capital offense’ necessarily mean that the defendant was confined in jail, for under no other construction can the order be taken as having been in conformity with the statute. It is not essential that the exact words of the statute be used. Words of like im*140port or meaning are sufficient. "We think that the words used necessarily mean that the defendant was confined in jail.”
It is held that a party out on hail is not in custody : Cozart v. Wolf (Ind.), 112 N. E. 241; Spring v. Dahlman, 34 Neb. 692 (52 N. W. 567). Section 1874, L. O. L., if interpreted in accordance with the natural meaning of' its language, has no application to this case.
I am also of the opinion that petitioner is in no position to raise the question determined in her favor by the majority of the court. She speaks on behalf of her husband, who has been convicted of crime against the laws of this state, and claims for him exemption from extradition because he has not yet paid the penalty due from him to the State of Oregon. Section 1874, L. O. L., is to be interpreted in the light of the object which the legislature had in view in its enactment: Endlich on the Interpretation of Statutes, § 73. In my opinion, the act was passed to guide the chief executive of the state in the performance of his duties, not to afford immunity to those who have violated the laws of other states, on the ground that they haye also, violated the laws of this state. If this were a controversy between the authorities of this state and those of the State of California, each contending for the possession of the prisoner, the Oregon authorities would be entitled to rely on this statute. To hold that the prisoner is entitled to urge this contention is to endow him with privilege through his own wrong. It leads to the conclusion, in my opinion untenable, that a party may successfully resist extradition by violating the laws of the jurisdiction in which he is found and rendering himself subject to punishment through its criminal processes. Under the rule announced, a defendant charged *141with murder in California or Idaho, by committing a less serious offense in Oregon, might escape prosecution for the murder until the witnesses against him had scattered or died. He might do this without incurring the inconvenience of imprisonment if he could secure a parole from the trial judge.
Unless driven to the conclusion by imperative necessity, this court should not announce the rule that violators of the laws of this state may claim exemption from extradition while all others are subject -thereto. The statute should be construed as one enacted to protect the state in its right to demand the penalty due for the violation of its laws. We are familiar with many statutes which are enforced only at the instance of the state. There are constitutional and statutory provisions in several of the states forbidding alien ownership of lands. It is held in these jurisdictions that a deed running to an alien passes title subject only to be defeated by direct action of the state: American Mortgage Co. v. Tennille, 87 Ga. 28 (13 S. E. 158, 12 L. R. A. 529, 530); Williams v. Bennett, 1 Tex. Civ. App. 498 (20 S. W. 856, 858, 859); Abrams v. State, 45 Wash. 327 (88 Pac. 327, 122 Am. St. Rep. 914, 13 Ann. Cas. 527, 9 L. R. A. (N. S.) 186, 190).
In this state the statutes providing the procedure for the organization of corporations are mandatory, but it is held that when the state acquiesces a failure to comply with these requirements will not prevent the organization of a de facto corporation: Brown v. Webb, 60 Or. 526, 530 (120 Pac. 387); Tyree v. Crystal Dist. Imp. Co., 64 Or. 251, 254 (126 Pac. 605). Section 6717, L. O. L., provides for the dissolution of corporations which fail to file the reports and pay the fees required by law. In Dowd v. American Surety Co., 69 Or. 418, 424 (139 Pac. 112), it is held that the surety of such de*142linquent corporation cannot plead such dissolution'as a defense to an action on its obligation.
As I read the authorities thay are all to the effect that this prisoner is in no position to raise the question which is determined in his favor by the majority opinion.
In People v. Eagan, 34 Misc. 85 (69 N. Y. Supp. 475), the relator had been convicted of grand larceny and had appealed from the judgment of conviction. He was admitted to bail pending the determination of his appeal. Under these circumstances the Governor of New York honored a requisition from the Governor of New Jersey for his rendition to that state to answer an indictment found against him there. In that case, as in this case, a judgment of conviction had been entered in the asylum state; while an appeal had been taken, the presumption was that there was no error and that the judgment was correct. In that case, as in this, the party whose extradition was sought was at large; he had not paid the penalty due from him to the asylum state. The court said:
“That the state need not surrender upon requisition of another state a prisoner held in actual custody either under civil process to secure the payment of a debt, or under criminal process to answer or suffer punishment for a crime seems to be well settled. * #
“The fact that in this particular case the relator, although under conviction, is actually at large on bail, does not, in my opinion, affect the application of the rule. He still owes to this state a debt of imprisonment as a punishment for the crime against the laws of this state of which he has been convicted. He is still theoretically in the grasp and custody of the law. * * That, however, is not the precise question presented upon this application, because it is the person charged with crime, and not the state authorities, who insist that he must be kept here to answer for the crime committed in this state, and that he cannot be sent to New *143Jersey to answer for the crime committed there. I do not think that he can be heard to make this objection to his extradition. If he has committed offenses against the laws of two states, it is not for him to choose in which state he shall be held to answer. Naturally he would always choose that in which the punishment would be the lighter, or the chances of conviction the least. In Roberts v. Reilly, 116 U. S. 80 (29 L. Ed. 544, 6 Sup. Ct. Rep. 291), this very question arose. Boberts, a fugitive from the State of New York, was arrested in Georgia upon an extradition warrant issued by the Governor of that state. He averred that the acts with which he was charged constituted a crime against the State of Georgia, as well as against the State of New York, and, therefore, that he should be held to answer to the laws of Georgia before he was sent out of that state to answer to the laws of another state. This contention was overruled by the Supreme Court of the United States, which held that even in such a case it was competent for the State of Georgia to waive the exercise of its jurisdiction by surrendering the fugitive to answer to the laws of New York. In the very nature of things, it is desirable that the power should rest somewhere in the state to refuse to give up a prisoner until he has satisfied the claims of the state against him or to waive the enforcement of those claims and surrender him to another state for the satisfaction of its laws. If such power did not exist, a criminal might easily evade, or postpone, his just punishment for the gravest of crimes committed in one state by the commission of a crime of much less magnitude in another.”
In substantial accord with the above case are: Ex parte Marrin, 164 Fed. 631, 637; In re Fox, 51 Fed. 427, 430-433; Cozart v. Wolf (Ind.), 112 N. E. 241; Mackin v. People (Ill.), 8 N. E. 178, 181. It is admitted that none of these cases present all the features of the case at bar, but they all announce the rule that a defendant charged with or convicted of crime cannot avail himself of the penalty due from him as a ground on which to resist extradition. I am of the opinion that in depart*144ing from this rule we are establishing a precedent which will interfere with the speedy and orderly administration of justice.
All of the contentions advanced by petitioner are, in my opinion, untenable and I think that the judgment should be affirmed.
Mr. Justice Moore concurs in this dissent.