Notwithstanding the long continued contest in the litigation before us it appears to me that there is no real basis for debate on the controlling issue. If we had a record disclosing a substantial conflict in evidence as to the facts upon which state jurisdiction depends then the majority conclusion would be tenable. But we have no such record.
Upon the facts shown, the Constitution (art. VI, § 2) and laws (18 U.S.C.A. §§ 1151, 1152, 1153, 3242) of the United States operate to vest exclusive jurisdiction of the subject matter of this case—the penal responsibility of the petitioner for the act allegedly constituting the crime for which he was tried and convicted—in the courts of the United States. Jurisdiction of the subject matter of an action is vested in, or prohibited to, a court by the Constitution, federal or state, and as may be defined or implemented by statutes which do not transgress constitutional limits. (See Harrington v. Superior Court (1924), 194 Cal. 185, 188 [2] [228 P. 15] [“Jurisdiction in any proceeding is conferred by law; that is, by the constitution or by statute”].) Jurisdiction of the subject matter exists by law or it does not exist and cannot be acquired. (See Schlyen v. Schlyen (1954), 43 Cal.2d *889361, 375 [17] [273 P.2d 897]; Taylor v. Taylor (1923), 192 Cal. 71, 78 [6] [218 P. 756, 51 A.L.R. 1074] [“Neither a party, nor both parties, can vest a court with jurisdiction to which it is a stranger”]; King v. Kutner-Goldstein Co. (1901), 135 Cal. 65, 67 [67 P. 10]; Costa v. Banta (1950), 98 Cal.App.2d 181,182 [2] [219 P.2d 478]; Higgins v. Coyne (1946), 75 Cal.App.2d 69, 70 [1] [170 P.2d 25] ; Glass v. Bank of America etc. Assn. (1936), 17 Cal.App.2d 645, 647 [3] [62 P.2d 764] ; Mannix v. Superior Court (1933), 133 Cal.App. 740, 743 [3] [24 P.2d 507] [“A court cannot, by presuming to act, invest itself with jurisdiction”].) “[Jjudicial duty is not less fitly performed by declining ungranted jurisdiction [or, here, jurisdiction which the Congress has declared is in the federal courts] than in exercising firmly that which the Constitution and the laws confer.” (Ex parte McCardle (1868), 7 Wall. (U.S.) 506, 515 [19 L.Ed. 264].)
Since by force of federal law jurisdiction over petitioner’s act and his penal responsibility therefor is vested in the federal courts and therefore prohibited to California the petitioner is entitled to discharge from state custody.