concurring and dissenting.
The writ is properly quashed because the record which we review sufficiently establishes probable cause for the arrest of the petitioner and his detention and surrender to Wyoming officials. To that extent, I concur, and since I believe the affidavit of underlying facts to be somewhat of a model, it is being set forth in a note.1
Where the opinion of the Court declares that extradition proceedings are exempt *52from probable cause requirements, I am in strong disagreement.
In the first place, such a declaration is mere dictum. In the present case, the papers from the demanding state did show sufficient underlying facts to demonstrate probable cause to arrest, detain and extradite Mr. Jacobsen. The majority expressly so holds. The question of whether extradition proceedings are exempt from probable cause requirements would have to be faced only if the Court were to hold that probable cause was lacking. It is a fundamental principle of constitutional adjudication that a reviewing court will not pass on questions of constitutionality unless it is absolutely necessary to do so in order to determine the merits of the case. Curtis v. Child, 95 Idaho 63, 501 P.2d 1374 (1972).
Secondly, I question the judicial wisdom in making such a pronouncement in the face of overwhelming authority which points in the other direction. When the issue of probable cause in the extradition context arose at oral argument, the Court requested further briefing on the subject. The office of the Attorney General, in a thorough supplemental brief, has given us the benefit of its research on the matter. Therein the State directs our attention to Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Kirkland v. Preston, 128 U.S.App.D.C. 148, 385 F.2d 670 (1967); Ierardi v. Gunter, 528 F.2d 929 (1st Cir. 1976); Montague v. Smedley, 557 P.2d 774 (Alaska 1976); Allen v. Cronin, 543 P.2d 707 (Colo.1976),2 which stand for the following proposition which I quote verbatim from the State’s supplemental brief:
A JUDICIAL DETERMINATION OF PROBABLE CAUSE MUST PRECEDE ANY SIGNIFICANT PRETRIAL RESTRAINT OF LIBERTY, INCLUDING RESTRAINT FOR PURPOSES OF INTERSTATE EXTRADITION.
Gerstein speaks the law for all fifty states. Where a majority of the Court unnecessarily insist on holding that probable cause need not be established in extradition proceedings in this State, I vote with Justice Bakes.
Were the Court’s opinion limited to the statement that a probable cause hearing is not required in the asylum state “in cases where the demanding documents substantially charge the commission of a crime,” and were there a correct elucidation as to the meaning of “substantially charging” the commission of a crime, then there would be a single opinion in this case. At oral argument counsel for the State explained that “substantially charge” means that the charges must be supported by a probable cause determination made by a magistrate. If it is understood that “substantially charge” carries with it the accomplished fact of a probable cause hearing in the demanding state, then ordinarily a probable cause hearing need not be had in the asylum state. In Ierardi the court considered the issue of whether there must be a judicial determination of probable cause prior to interstate extradition. In reaching its decision, the court relied on Gerstein for the proposition that “the Fourth Amendment requires a timely judicial determination of probable cause as a prerequisite to detention.” Gerstein v. Pugh, 420 U.S. at 126, 95 S.Ct. at 869. The Ierardi court then said:
*53We agree with the district court that Gerstein requires a judicial determination of probable cause as prerequisite of interstate extradition. After Gerstein such a determination must precede ‘any significant pretrial restraint of liberty,’ 420 U.S. at 125, 95 S.Ct. at 868, and we think interstate extradition necessarily involves significant restraint. 528 F.2d at 930.
The court then concluded:
Respondents seem to assume that if a judicial determination of probable cause must precede extradition, it must be provided by the courts of the asylum state, where the fugitive is held. This is not so. Gerstein explicitly rejected the need for adversarial procedures; it required only the neutral and detached judgment of a judicial officer or tribunal, and contemplated that this could be provided before as well as shortly after arrest. Thus nothing in Gerstein prevents the demanding state from providing the requisite pre-rendition determination of probable cause. (Emphasis added.) Id. at 930-931.
As a result, the requisite pre-rendition determination of probable cause may be made by either the demanding state or the asylum state.
In Struve v. Wilcox, No. 12307, 99 Idaho 205, 579 P.2d 1188 (filed February 3, 1978), probable cause was discussed in connection with Rule 4 of the Rules of Criminal Practice and Procedure. Therein we pointed out that since territorial days an arrest warrant could only issue if the magistrate found in the deposition (affidavits) facts tending to establish the commission of the offense and the guilt of the defendant. In this jurisdiction, it has always been necessary to establish probable cause as a condition precedent to the issuance of a warrant to arrest and detain a person or seize his property. In State v. Arregui, 44 Idaho 43, 254 P. 788 (1927), a search warrant case, this Court held that the affidavit must set forth and disclose some personal knowledge of the underlying facts; the conclusions to be drawn therefrom are for the magistrate to draw. The underlying facts must be “sufficient upon which to find probable cause for the issuance of the warrant. . . ”
State v. Arregui, id. at 63, 254 P. at 794. In the promulgation of Rule 4, I.C.R., “sufficient evidence” to justify a finding of probable cause became “substantial evidence.” Reasonably, then, it follows that a person is “substantially charged” with the commission of a crime when the affidavit or affidavits of underlying facts disclose substantial or sufficient evidence upon which to base a finding of probable cause. Mere conclusory allegations in a complaint, parroting the language of the particular statute involved, will not suffice. A reading of the majority opinion suggests to my mind that in the eyes of the majority “substantially charge” has no connection with a finding of probable cause, conveying the message only that the charge of the criminal complaint be complete enough to withstand a demurrer or motion to dismiss, whichever might be interposed in a particular jurisdiction.
The federal statute which was enacted to implement the extradition clause of the United States Constitution, 18 U.S.C.A. § 3182, requires that where there is not an indictment found, the demanding state must produce “an affidavit made before a magistrate.” The very nature of an affidavit is to “set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the offense and the guilt of the defendant.” I.C. § 19-505. Surely Congress, in enacting 18 U.S.C.A. § 3182, must also have intended to require that the affidavit, or affidavits, made before a magistrate establish probable cause to the magistrate’s satisfaction. The only alternative is the production of an indictment found — which all will concede can only result from a grand jury hearing where evidence has been received showing the commission of a crime and probable cause to believe the person charged guilty thereof.
If such underlying probable cause were not the requirement of 18 U.S.C.A. § 3182, the federal statute would ask for no more than a complaint and a warrant. But an affidavit made before a magistrate is re*54quired. If it be for any purpose, then it is for the purpose of establishing probable cause, and thereby a person is substantially charged. U. S. ex rel. McCline v. Meyering, 75 F.2d 716, 718 (7th Cir. 1934); State ex rel. Foster v. Uttech, 31 Wis.2d 664, 143 N.W.2d 500, 503 (1966).
Videan v. State, 68 Idaho 269, 194 P.2d 615 (1948), declared the judicial function in extradition proceedings:
The major questions for consideration relate to the authority of the Governor of the state of Idaho to issue a warrant of extradition based upon the contents of the requisition proceedings for the surrender of appellant. If those proceedings do not conform to the statutory requirements of this jurisdiction, or, are void for other reasons, then the action of the executive authority of this state was unauthorized in issuing a warrant for extradition to the demanding state. 68 Idaho at 271, 194 P.2d at 617.
Habeas corpus affords an opportunity for judicial review of the issuance of a governor’s warrant, i. e., to determine if the documents upon which the governor acted conformed to the statutory law of this jurisdiction. Our statute, I.C. § 19-4503, requires that, whether the demanding state transmits a copy of an indictment found, an information supported by affidavit, or an affidavit made before a magistrate, the document “must substantially charge” the person demanded with having committed a crime. And so the inquiry comes full circle back to the statement of counsel for the State at oral argument: “substantially charge” means that there must have been in the demanding state, and if not there, then here, an affidavit of underlying acts from which a magistrate has properly drawn the conclusion that probable cause has been established.
.John R. Benesch swore to the criminal complaint which charged Jacobsen in the language of the Wyoming statute. On the same date, October 1, 1975, he swore before the magistrate to an affidavit of underlying facts, following which the warrant issued. The affidavit specifically recites that the complaining witness relies upon the following facts to establish probable cause for believing the criminal violation alleged in the complaint was committed, and that Jacobsen committed the same, and proceeds to relate:
1. That I am the President of the American National Bank of Riverton, Riverton, Wyoming.
2. That on or about the 13th day of January, 1975, the bank took as security for a loan to Larry Jacobsen a security agreement listing one 1974 Plymouth Trail Duster, V.I.N. AAOAT 4X115168.
3. That on or about the 22nd day of August, 1975, the American National Bank of Riverton took as security for a loan to Larry Jacobsen, one Renaissance LaPaz Billiard Table, Serial No. 93179, as set out on a security agreement signed by Larry Jacobsen that date.
4. That the debtor Larry L. Jacobsen was in default upon the note signed at the bank and, on or about August 28, 1975, I talked on the telephone to Larry Jacobsen long distance and told him that he was not to remove the property which the bank held as security from the Riverton vicinity.
5. That the 1974 Plymouth and the billiard table were located at the Frank Hill residence on Riverton Road, which residence was leased by Larry Jacobson.
6. Frank Hill has stated to me that Larry Jacobsen entered his house on Riverview Road on or about September 28, 1975 and removed one Quality Billiard Table and also removed one 1974 Plymouth Trail Duster along with other property held by the bank under security agreements signed by Larry Jacobsen.
7. That Ed Schmidt, Yellowstone Oil, Inc., West Main, Riverton, Wyoming, has stated to me that late the afternoon of September 27, 1975, Larry Jacobsen rented two U-Haul trailers from the station indicating destina-, tion for the U-Hauls as Nampa, Idaho.
8. That Larry Jacobson’s parents live at Nampa, Idaho.
9. That other mortgaged property held as security by the American National Bank of Riverton was taken from the Hill residence by Larry Jacobsen in addition to the billiard table and vehicle, including but not limited to, one 1967 Pontiac Grand Prix, Frigidare washer and dryer, a Magnavox stereo and Magnavox TV.
10. That at no time did the American National Bank of Riverton give consent to Larry Jacobsen to remove the mortgaged property from Fremont County and had, in fact, given a specific order to Mr. Jacobsen not to remove such property from the residence on Riverview Road in Fremont County.
. The casual reader is liable to be misled by the majority’s suggestion that the authorities are split on the question of “whether there must be a probable cause determination prior to extradition either in the demanding or asylum state.” Especially startling is the majority’s apparent approval of a case allegedly suggesting “the inapplicability of the Bill of Rights as a whole to extradition matters.” Without dissecting in detail the cases relied upon by the majority, I would simply point out that most of them pre-date Gerstein; the remainder stand not for the proposition that the accused may be extradited without a probable cause determination, but rather for the proposition that the accused may not use such a probable cause hearing to argue what will ultimately be his substantive defenses in the criminal prosecution itself. It is in this sense only that the express and implied guarantees of the Bill of Rights — such as the right to a speedy trial, freedom from double jeopardy, inadmissibility of evidence absent Miranda warnings, etc.— can be said to be inapplicable in the extradition context.