*680Concurring Opinion.
Myers, C. J.I wish to state additional grounds for my concurrence in the prevailing opinion. The act of 1897 (Acts 1897 p. 38), first brought into the statute law of this State the sections which now appear as §§33, 41, of the Acts 1905 p. 584, §§1900-1908 Burns 1908. The prior acts had restricted the examining officer to judges of supreme, circuit common pleas or criminal courts and justices of the peace, and the prior acts had also been restricted to eases of arrest upon warrant of the governor. The act of 1897, provided for the apprehension upon complaint in writing of any person within this State, charged with an offense committed in another state or territory, and liable to be delivered over upon demand of the governor thereof, and empowered any judge or justice of the peace, authorized to issue warrants in criminal cases, to issue a warrant and cause the apprehension of the alleged fugitive and to cause him to be brought before him “or any other judge or justice of the peace” who should examine whether the complaint was true, and if he so found, to recognize him under bond to appear before such judge or justice at a future day, allowing time for obtaining the warrant of the governor, except that in case of treason or murder, he shall be committed. The judge or justice is then to notify the governor, and like proceedings are to be had as in case of an original demand by such foreign governor, and the issuance of a warrant by the governor of this State, etc. This was clearly a remedial statute in the interest of justice.
When we come to the act of 1905, it embodies these sections of the act of 1897, except it enlarges the warrant issuing power to include a “court, judge or justice of the peace” in each instance where it had previously read “any judge or justice of the peace, ’ ’ but when we come to the portion of the act of 1905 as to examining the accused person for the purpose of identification, and transferring him to the custody *681of the foreign agent, we find the power committed for the first time, to the “circuit, superior or criminal court, or judge of this state, nearest,” etc. The contention of appellee is that the phrase should be read “or judge thereof,” as implying action by the judges of circuit, superior or criminal courts in vacation, or at times when the court is not in session. This may be a permissive construction, but with the statutes authorizing “any court, judge or justice of the peace” to apprehend the fugitive and determine as to the question whether there is reason to believe a complaint to be true, charging crime in another jurisdiction, and that the accused has fled and is liable to be delivered on demand of a foreign governor, and may be held or recognized if the offense is not treason or murder, that the statute as it now exists is remedial in its nature and should receive a fairly liberal construction. It is not adverse to, or subversive of any right of the individual, guaranteed by any constitution, or by the common law, but a purely administrative act in the nature of a police regulation, as between the states, under and in aid of the constitutional provision for the extradition between the states, of those charged with crimes. Even a statute ordinarily calling for strict construction should not be so construed as to destroy its manifest purpose and intent. It is true that the power of examination in this particular is committed to a “circuit, superior or criminal court, or judge of this State,” but the matter of identification of the party is not nearly so important, at least generally, as the determination before the warrant Of the governor issues, whether there is reasonable cause to believe one guilty of a crime, or that he is a fugitive, and the power to make that finding is committed to “any court, judge or justice of the peace, authorized to issue warrants,” and is a part of the same statute. If it be said that it was an attempt to raise the rank of the authority to examine as to identity, in order that one should not be carried from this jurisdiction, the same direction is given to a “court” as to a “judge” under *682§32, Acts 1905 p. 584, §1899 Burns 1908, to see to it that no “resident or citizen” of this State shall be delivered up, where it appears that such “citizen or inhabitant” was in this State, and not in the state whence he is alleged to have fled, at the time of the alleged commission of the offense, so that it is not as to that particular a question as to whom shall he be tried by, but the same prohibition, if valid, extends to every examining court or judge.
Usually, where power is conferred upon a judge of a court to act when the court is not in session, there is added “or the judge thereof,” or some such phrase, and it would probably be so read in the absence of the phrase, if the contents did not point by analogy, or reason to some other construction, as the legislative intention. But when the prior and contemporaneous legislation, and the reason inhering in the matter itself, and the absence of reason for and language restricting it, it appears to me that the language “or judge of this state” was intentionally used, as applying to judges of courts of record.
There does not seem to me, to be any other good reason for the use of the words “judge of this state”. The word “judge” has as well a defined meaning in legal nomenclature, and is as well understood as the word “court,” and even as to the latter it would not in my judgment in view of that fact and former legislation, have been necessary to have used the words “circuit, superior or criminal”, in the act, in order that we should understand what was intended, and in this statute it means “any judge of this state”; that is, any public officer whose function it is to declare the law, to admission to administer justice in a court of law, under prescribed forms and legal methods.
It is suggested that such holding would authorize a justice of the Supreme or Appellate Court to sit as an examiner, while the court itself could not. It is sufficient to point out that from 1824 until 1867 judges of the supreme, circuit and other courts, and justices of the peace, either so desig*683nated because it was a remedial act, or because they were not recognized as judges, might do just that thing, where the court itself could not. For the same reason, because they are not judges or courts they are excluded by the act of 1905.
Appellee’s position may be an argument of expediency, but we are dealing with a coneededly legislative power, and the remedy if one is needed is with the legislature, and it seems to me that the legislature has indicated its intention, and that the court below was in error.