Dissenting Opinion.
Cox, J.Ordinarily the futility of a dissenting opinion is so apparent that I am sometimes led to refrain from dissent even though my mind fails to give free and unhampered concurrence in all respects to the prevailing opinion. In the case before us, however, I am so sensibly impressed with a conviction that the court has fallen into error that I am constrained to give some reasons for the conclusion entertained by me that the judgment of the trial court should be affirmed.
Appellee was in custody as a fugitive from justice by due and orderly procedure up to and including the issuing of the warrant of the governor of this State commanding the apprehension of appellee and his delivery to the agent of the state of Ohio which was demanding him. His application for the writ of habeas corpus was based on irregularities occurring after the warrant of the governor for the arrest and delivery of appellee to the agent of the demanding state to appellants, Hyland and Holtz, who were officers with competent authority to execute it. These officers took appellee into custody upon the warrant of the governor and took him before the judge of the City Court of the City of Indianapolis for examination into the question of his proper identity. That judge ordered him delivered to the appellant Cairl, the agent of the demanding state and he was being *684held in the city prison of the City of Indianapolis by appellants, Hyland and Holtz, pending opportunity for his removal to the state of Ohio by appellant, Cairl, when appellee presented to the trial court his petition for a writ of habeas corpus. This writ was effective, that court finding that appellee was being unlawfully held, and he was discharged from the custody of appellants.
This action of the trial court was taken upon the theory that the law of this State gives to one charged with being a fugitive from the justice of a sister state a positive right to a hearing touching his identity with the-one charged with the crime before a tribunal designated by our statute, and that this law had not been complied with in that the judge of the city court was not clothed by the statute with authority to hear and determine such question. Prom this the conclusion followed that the order of that judge for the delivery of appellee to the agent of the state of Ohio was void and that appellee was being unlawfully deprived of his liberty.
If the provisions o'f our extradition statute did not empower the judge of the city court to examine into the identity of appellee with the fugitive sought to be extradited and thereupon order him, when satisfied of his proper identity, delivered into the hands of the state of Ohio, then the judgment of the circuit court in this case was correct unless those provisions of our statute which require such an inquiry before the removal of an alleged fugitive are invalid.
The proper interpretation of the provision found in §26 of the act of 1905 (Acts 1905 p. 584, §1893 Burns 1908), that the officer executing the governor’s warrant shall “apprehend such fugitive and bring him before the circuit, superior or criminal court or judge of this state nearest and most convenient of access to the place at which the arrest may be made,” for determination of the question of his identity as the fugitive demanded as provided by the following section, together with the determination of the validity of these provisions of our statute requiring identification in this man*685ner before removal a-re, therefore, the two vital questions presented to this court for solution.
Much of the very able briefs of the distinguished counsel for appellants is addressed to an effort to establish the status of the judge of the City Court of the City of Indianapolis as a judge of this State and in a general sense it is at once manifest that he is. He is the judge of a court which touches vitally the lives of many people in their relation to the laws of the State and as such judge his duties are onerous and important. But it is well to remember that the court over which he presides is one of limited jurisdiction and has no authority to issue writs of habeas corpus as each of the three courts specifically named have. This fact is not wholly insignificant in the search for the legislative intention. That the legislature might have given him the authority claimed for him is sure. It does not, however, follow that he is among those judges of the state vested with authority to examine into the question of the identity of an alleged fugitive from justice within the meaning of the words as used in our extradition statute. If the words “judge of this state” are to be construed to be given their very broadest meaning, unlimited save only that they must obviously be taken to mean the judge of a court of this State, then it would readily follow that they are inclusive of the judge of the City Court of the City of Indianapolis. •
Counsel earnestly contend that the words “judge of this State” bear a meaning plain and unambiguous and are not subject therefore to interpretation. And at the same time counsel are attempting to sever these words from a part of their context to which they are vitally bound and are asking that they be given a construction that is far from obvious. Left in association with the words “ circuit, superior or criminal court’’where the lawmakers placed them and it is at once evident that the construction which counsel themselves are asking shall be put upon them is strained. It will be agreed at once that it is a very well-settled rule that so long as the *686language in a statute is unambiguous, there is no room for construction and a departure from its natural meaning is not justified but it is the plain duty of the court to give it force and effect as it is written.
Where, however, more than one meaning may be extracted from the words used in a statute without doing violence to its terms an ambiguity may be said to be present and it becomes the province and the duty of courts to resort to construction to ascertain, if may be, the intention of the legislature. 36 Cyc. 1114, 1118. It appearing that the language involved is a proper subject for interpretation, the intention of the lawmaking power must be sought in reason aided by the accepted rules for the construction and interpretation of statutes. Suppose the words "or judge” had not been used in the section under consideration. The provision would then have read that the officer charged with the duty of executing the warrant shall "apprehend such fugitive and bring him before the circuit, superior or criminal court of this state nearest and most convenient of access to the place at which the arrest may be made. ’ ’ The words in that case would convey a meaning so clear that the dullest mind could not misconceive their certain import. Every lawyer and perhaps most lajunen would at once agree that the alleged fugitive must be taken before either one of the three courts named which was nearest and most convenient of access then sitting in term. No one would claim that this court, or the Appellate Court or any probate court, or any juvenile court, or any city court could qualify as a proper tribunal for the purpose under the words used. The words used would bestow authority only upon the circuit, superior and criminal courts and on these only in term time, for the rule is that where the law authorizes or contemplates the doing of an act by a court it is and must be understood that the court in term time may or must do it, and the judge in vacation cannot, unless the power is expressly conferred upon him by law. Ferger v. Wesler (1871), 35 Ind. 53; *687Newman v. Hammond (1874), 46 Ind. 119; Backer v. Eble (1896), 144 Ind. 287, 43 N. E. 233; State v. Hindman (1903), 159 Ind. 586, 590, 65 N. E. 911.
The power which a judge may exercise in vacation is only such special statutory power as is prescribed. If express authority cannot be pointed to in the statute it is assumed that it does not exist. Taylor v. Moffatt (1830), 2 Blackf. 305; Pressley v. Harrison (1885), 102 Ind. 14, 1 N. E. 188.
It is known that the extradition statute was framed, as a part of our existing criminal code, by a commission of lawyers who had had judicial experience, one of them as a member of this court. The archives of the State show that the language under consideration was the product of their labor. The legislature enacted it as they had prepared it. They of course knew that, under the rules of law just above stated, the bestowal of authority upon the circuit, superior and criminal courts to examine into the question of the identity of an alleged fugitive from justice would give no power to the judges of such courts in vacation. The convenience, if not indeed the necessity, of sneh.authority to be possessed by the judges in vacation is easily apparent. The courts are not always sitting in term while the judges may usually be at hand in vacation. So interpolating the words “or judge” after the words “circuit, superior or criminal court,” and the intention of the legislature at once becomes manifest to vest authority to hear and determine the question in the courts named if sitting in term or a judge of either of them in vacation. This construction takes nothing from the statute and adds nothing to it. It gives proper and natural effect to every word used as just interpretation requires when possible. For it is the rule that a statute must be construed as a whole and every word in it made effective if 'possible. Potter’s Dwarris, Statutes 194; Hutchen v. Niblo (1836), 4 Blackf. 148; Stayton v. Hulings (1855), 7 Ind. 144; Sutton v. Parker (1879), 65 Ind. 536, 542; Cleveland, etc., R. Co. v. Backus (1893), 133 Ind. 513, 526, *68833 N. E. 421, 18 L. R. A. 729; affirmed, Cleveland, etc., R. Co. v. Backus (1894), 154 U. S. 439, 14 Sup. Ct. 1122, 38 L. Ed. 1041; State v. Weller (1908), 171 Ind. 53, 85 N. E. 761.
“The good expositor,” says Lord Coke, “makes every sentence have its operation to suppress all the mischiefs; he gives effect to every word in the statute; he does not construe it so that anything should be vain and superfluous, nor yet make exposition against express words, * * * but so expounds it, that one part of the act may agree with the other, and all may stand together.” Case of Leases, 5 Rep. 6.
“The framers of law do not weigh only the force of single words, as philologists and critics, but of whole clauses and designated objects, as statesmen and practical reasoners. * ■ * *= The peculiar sense in which a word is used in any section is to be determined by the context.” Potter’s Dwarris. Statutes 196.
It is not permissible to suppose that the framers of the statute and the legislature used the words “circuit, superior or criminal court” with no purpose or meaning. There is no authority for lifting the words “or judge of this state” out of the statute, setting them alone before us and saying, “Behold, how simple they are, how very clear and single and unmistakable is their meaning.” On the contrary, it is positively forbidden, as we have seen. They must be read in the lumination afforded by the purview of the act and their context. The first would clearly require a limitation of the word “judge” to “a judge of a court of this State” for the absurdity of giving the word “judge” the very broadest and most inclusive meaning which may be imported by it is baldly palpable. Considered apart from the preceding words designating certain courts, and still the words “judge of this state” cannot be given their broadest popula'r meaning for there be judges of horse races and of fine poultry and of many other material and profane things *689in the State as well as judges of law. They must he given their legal meaning. The word " judge” has a well known and definite meaning apart from its legal meaning. In the second place, viewing the word in the light of the context, of its associated words, it is apparent it must take the further limitation indicated above, that is, a judge of one of the three courts specifically designated in that part of the provision immediately preceding it. In the case of State v. Lowry (1906), 166 Ind. 372, 392, 77 N. E. 728, 4 L. R. A. (N. S.) 528, 9 Ann. Cas. 350, the rule applicable here is considered, and various authoritative statements of the rule set out. “One of the maxims of the law which there is frequent occasion to employ in the construction of statutes is that of noscitur a sociis. It is known from its associates or associations. As stated by Maxwell: ‘"When two or more words, susceptible of analogous meaning, are coupled together, noscuntur a sociis, they are understood to be used in their cognate sense. They take, as it were, their color from each other; that is, the more general is restricted to a sense analogous to the less general.’ Maxwell, Interp. of Stat. (3d ed.) 461. Another writer says: 'Not only are words and provisions modified to harmonize with the leading and controlling purpose or intention of an act, but also by comparison of one subordinate part with another; that is to say, the sense of particular words or phrases may be greatly influenced by the context, or their association with other words and clauses. The principle is embodied in the maxim, noscitur a sociis, and is applicable to the construction of all written instruments.’ 2 Lewis’ Sutherland, Stat. Constr. (2d ed.) §414. In the discussion of the maxim noscitur a sociis, Mr. Broom states: ' It is a rule laid down by Lord Bacon, that copulaMo verborum indicat acceptationem ineodem sens'll—the coupling of words together shows that they are to be understood in the same sense.’ Broom’s Legal Maxims (8th ed.) 588.”
*690Other accepted maxims and rules of interpretation which will suggest themselves at once to the mind of the lawyer without further elaboration of this opinion point with equal certainty to the rational intention of the legislature above indicated.
The contention of counsel for appellants that the words “judge of this State” found where they are in this statute is inclusive of every judge of every court of this State from the judge of a city court to a judge of this court ends in the conclusion that the legislature intended to give to every judge of every court of this State the authority to entertain the inquiry into the identity of an alleged fugitive whether the court of which he was the judge was in term or in vacation, and then, singling out three of the courts specifically, to perpetrate the stupid absurdity of giving to their judges the authority to do in term the very thing they had been before authorized to do at any time either in term or in vacation. If every judge of the State possesses the authority, he must have it at all times whether his court is in session or not and it could add nothing to say that his court should also have the authority, for without the judge the court is not. It is a cardinal rule that an interpretation which leads to an absurdity is not admissible if it can be well avoided. “Where general language construed in a broad sense would lead to absurdity it may be restrained. The particular inquiry is not what is the abstract force of the words or what they may comprehend, but in what sense they were intended to be used as they are found in the act. The sense in which they were intended to be used furnishes the rule of interpretation, and this is to be collected from the context; and a narrower or more extended meaning is to be given according to the intention thus indicated.” 2 Lewis’ Sutherland, Stat. Constr. (2d ed.) §376.
Counsel for appellants point out to us the fact that this act of 1905 for the first time in the history of legislation on the subject of extradition in this State requires the *691examination into the identity of the alleged fugitive to be before a court, previous enactments having uniformly specifield only judges of courts. The act of 1867 (Acts 1867 p. 126, 2 R. S. 1876 p. 421), which in other respects contained provisions similar to the one now in force required the officer executing the governor’s warrant to bring the alleged fugitive “before the circuit or common pleas judge of this state who may be nearest or convenient of access to the place at which the arrest may be made.” The act of 1881 (Acts 1881 [s. s.] p. 114, §1599 R. S. 1881), merely substituted “criminal” for “common pleas” the common pleas court having in the meantime been abolished and the criminal court created. The act of 1824 which continued in force until the passage of the act of 1867 is in no way influential for it did not contain the provision for an inquiry into the question of the identity of the person charged. In connection with this state of the law on the subject prior to the act of 1905 counsel quote from Crawford v. Burke (1904), 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147, that, “a change in phraseology of a statute reenacted creates a presumption of change of intent.” And the attempt is made to buttress their contention with it. The rule is undeniably sound, but the support which it can give to the position of counsel is not clear. It does emphasize what I have conceived to be the intention of the legislature to make the courts specifically named the tribunals for the inquiry if they were in session or to give the judges of them the authority if they were not.
9. Counsel for appellants press with much zeal and earnestness the proposition that as the interstate extradition of fugitives from justice is enjoined by the Constitution of the United States and provided for by act of Congress, our statute on the subject which requires an inquiry by a state court or judge into the questions of the identity of the prisoner and whether he has fled from justice is invalid for infringing federal functions.
This question has been determined by this court adversely *692to the contention of counsel in the cases of Robinson v. Flanders (1867), 29 Ind. 10, and Hartman v. Avelin (1878), 63 Ind. 344, 30 Am. Rep. 217. These cases are recognized by counsel as obstructions to the declaration of law which they are now demanding at the hands of this court on this question and they ask that they be swept aside or overruled. I can see nothing in reason or in any adjudication of the Supreme Court of the United States which demands the impairment of these cases as authority or justifies this court in now declaring the provisions of our statute which are involved to be in conflict with federal authority. And I do not understand that any member of this court entertains any doubt of the constitutional validity of these provisions.
Section 2 of article 4 of the Federal Constitution provides: “A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. ’ ’
The existing legislation of congress on the subject, which is embodied in §5278 R. S. U. S., was enacted in 1793 and provides: “Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled and produces a copy of an indictment found or affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when it shall appear.”
*693It is clear at a glance that practically all of the provisions of onr extradition statute are in aid of the federal authority. And it requires hut little reflection to understand that those provisions embodied in §§26, 27 and 33 of the act of 1905 (Acts 1905 p. 584, §§1893, 1894, 1899 Burns 1908), which require the courts of this State to inquire whether the one in custody is the identical person charged with the crime, and whether he had been in the demanding state and had fled therefrom, and to discharge him from custody if not, are really in aid of the federal laws and not an interference with or clog to them. It must be remembered that the citizen’s right of liberty is held not less sacred, to say the least, under the constitution and laws of both state and federal governments than the apprehension and punishment of those guilty of crime. Neither the provision of the Federal Constitution, nor the statute passed pursuant to it, contemplate the transfer from one state to another as a fugitive criminal one who is not the identical person charged with the crime or one who was not in the demanding state and took no part at all therein in the alleged crime and who therefore had not fled from its justice. Hyatt v. People, ex rel. (1903), 188 U. S. 691, 23 Sup. Ct. 456, 47 L. Ed. 657; Pettibone v. Nichols (1906), 203 U. S. 192, 203, 27 Sup. Ct. 111, 51 L. Ed. 148, 7 Ann. Cas. 1047; Strassheim v. Daily (1911), 221 U. S. 280, 31 Sup. Ct. 558, 55 L. Ed. 735; monographic note to Farrell v. Hawley (1905), 112 Am. St. 111; State v. Smith (1902), 138 Ala. 111, 35 South. 42, 100 Am. St. 38 and note.
A due regard to the constitutional rights of the individual require that it shall not be done. These provisions of our statute help to make sure that the real purpose in the federal provisions is carried out and at the same time serve to safeguard the liberty of the citizen. The federal provisions do not prescribe the details of the procedure by which thesquestions may be determined. It was said by the Supreme Court of the United States in Appleyard v. Massachusetts *694(1906), 203 U. S. 222, 228, 27 Sup. Ct. 122, 51 L. Ed. 161, 7 Ann. Cas. 1073, in reference to the extradition of fugitives from justice that ‘ ‘ a state should take care, within the limits of the law, that the rights of its people are protected against illegal action.” Our statute does this.
It is true that from a dictum of Justice Story in the ease of Prigg v. Pennsylvania (1842), 16 Pet. *539, 10 L. Ed. 1060, it was at one time considered that states might not legislate even in aid of the federal laws by auxiliary enactments. But that opinion has long since ceased to be entertained and such laws are generally considered to be valid. Spear, Extradition (2d ed.) 311; 2 Moore, Extradition §542; Moore v. People (1852), 14 Howard *13, 14 L. Ed. 306; monographic note to Farrell v. Hawley, supra; Dennison v. Christian (1904), 72 Neb. 703, 117 Am. St. 817, 101 N. W. 1045, affirmed in Dennison v. Christian (1905), 196 U. S. 637, 25 Sup. Ct. 795, 49 L. Ed. 630; Knowlton’s Case, 5 Crim. Law Magazine 250; Kurtz v. State (1886), 22 Fla. 36, 1 Am. St. 173; Ex parte State of Alabama, in re Mohr (1883), 73 Ala. 503, 49 Am. Rep. 63; Ex parte Rosenblat (1876), 51 Cal. 285; Ex parte Ammons (1878), 34 Ohio St. 518; Commonwealth v. Tracy (1843), 5 Met. (Mass.) 536; Ex parte Butler (1878), 18 Albany Law Journal 369. It was once in doubt whether the state courts were available to an alleged fugitive to have his right determined by writ of habeas corpus, the claim being that the jurisdiction of the United States courts was exclusive. The contrary has been definitely settled. Robb v. Conolly (1884), 111 U. S. 624, 4 Sup. Ct. 544, 28 L. Ed. 542; Pettibone v. Nichols, supra, and cases cited.
The contention of counsel that by the very force of the words in the federal law the governor must, before issuing his warrant, determine whether the person to. be arrested thereon is the identical person charged and whether he is a fugitive from justice within the meaning of the law may be *695conceded to be correct, notwithstanding the obvious difficulty, which might sometimes arise, of the governor knowing in advance whether the officer chosen to execute the warrant would arrest the right person; for it has been so decided by the Supreme Court of the United States. Yet, nevertheless, his determination of these questions is only prima facie correct and may be reviewed by the courts. 19 Cyc. 94, and cases there cited; 6 Ency. of U. S. Supreme Court Reports 226; Hyatt v. People, supra; Pettibone v. Nichols, supra, and cases there cited; People, ex rel., v. Pease (1907), 207 U. S. 100, 108, 28 Sup. Ct. 58, 52 L. Ed. 121. As these questions may be reviewed by the courts by the writ of habeas corpus, unless the governor’s decision has been made conclusive by statute as has sometimes been done (19 Cyc. 94; Davis’s Case [1877], 122 Mass. 324), it is difficult to see why the more direct and summary method fixed by our statute may not be provided. It is no argument against it that the writ of habeas corpus is also open to the accused in this State. Without the statute a man might be taken from his domicile, although not the alleged criminal and not a fugitive within the meaning of the federal laws, with no opportunity given to resort to the writ to determine the facts. See Pettibone v. Nichols, supra. Our statute blazes with the intent to prevent such injustice.
It is true that the Supreme Court of the United States has decided that no obligation is imposed by the Constitution or laws of the United States on the agent of a demanding state to so time the arrest of one alleged to be a fugitive and so conduct his deportation from the surrendering state as to afford him a convenient opportunity before some tribunal, sitting in the latter state, upon habeas corpus or otherwise, to test the question whether he was a fugitive from justice and as such liable, under the act of congress, to be conveyed to the demanding state for trial there. But it will be observed by a glance at the official report of that *696case, that in the opinion of the court written by Mr. Justice Harlan, the words “by the Constitution or laws of the United States” are italicised as they are given above. Why was the court so particular to place stress upon these words? It seems to me to be clear that it was done to obtrude the implication that state laws might impose the obligation to afford opportunity for a hearing on such question “upon habeas.corpus or otherwise.”
In People, ex rel., v. Pease, supra, it was held that the governor’s warrant, whether issued upon the requisition and accompanying papers in proper form, or after an original, independent inquiry into the facts, is to be regarded only as “making a prima facie case in favor of the demanding state and as requiring the removal of the alleged criminal to the state in which he stands charged with crime, unless in some appropriate proceeding it is made to appear that he is not a fugitive from the justice of the demanding state.” It is held further that a proceeding by habeas corpus in a court of competent jurisdiction is appropriate for determining whether the accused is such fugitive from justice. The statement that it is the sole appropriate proceeding is carefully avoided.
The further point that is presented in appellants’ reply brief that §32 of the act of 1905 (Acts 1905 p. 584, §1899 Burns 1908) is in conflict with the privileges and immunities clause of §2 of article 4 of the Federal Constitution and the Fourteenth amendment, even if involved in the ease made by this record, comes too late. No such point was stated in appellants’ initial brief and under the fifth clause of Rule 22 it is too late to make it in the reply brief.
I think the case was correctly determined by the trial court and that its judgment should be affirmed.
Morris, J., concurs in the above dissenting opinion.Note.—Reported in 100 N. E. 842, 845, 847. See, also, under (1) 36 Cyc. 1106, 1128, 1147; (2, 7) 36 Cyc. 1114; (3) 36 Cyc. 1107; (4) 36 Cyc. 1110, 1136, 1138, 1147; (5) 36 Cyc. 1178; (6) 36 Cyc. 1106, *6971108; (8) 19 Cyc. 100. As to the extradition of fugitives from justice and what judges have jurisdiction in such matters, see 1 Am. St. 173. As to the necessity of construing the words of a statute according to their ordinary meaning, see 12 Am. St. 827.