(concurring specially)-
I concur in the result reached by the majority, but for different reasons.
The question before this Court is whether the sheriff of Ramsey County has lawful custody of Fournier under a legal and valid commitment by the county justice as committing magistrate.
Before entering into a discussion of the questions raised, we should consider the scope of inquiry and rules which must be applied in determination of an application for a writ of habeas corpus.
It is well settled in this state that the writ of habeas corpus can be invoked only when the person is confined without jurisdiction. State ex rel. Neville v. Overby, 54 N.D. 295, 209 N.W. 552, 554 (1926).
We have said in State ex rel. Styles v. Baeverstad, 12 N.D. 527, 97 N.W. 548, 549 (1903), that a finding by a committing mag*471istrate is conclusive against collateral attack by habeas corpus.
The examination of offenders is intrusted to magistrates, whose jurisdiction is defined and limited by the statute. The function exercised by the magistrate in such examination is a judicial one, and the finding and determination made by him, if the statutory bounds and requirements have been observed and followed, is entitled to the same respect and is of the same binding force as against collateral attack by habeas corpus as is the judgment of a court of general jurisdiction. * * *
State ex rel. Styles v. Baeverstad, supra, at 549.
In order to render a judgment immune from attack on habeas corpus, the court must have had not only jurisdiction of the subject matter and of the person of the defendant, but also to render the particular judgment in question. * * *
State ex rel. Styles v. Baeverstad, supra, Syllabus 5.
The scope of the inquiry is limited to questions of jurisdiction, and the inquiry made by this Court of the acts of the trial court are only to determine whether it acted within its jurisdiction.
The jurisdiction of a committing magistrate may be put in issue by proceedings in habeas corpus, and the petitioner may be discharged if it appears that the magistrate had no authority to issue the commitment * * *. The court, however, is limited to a review of such proceedings before the magistrate as relate to jurisdiction; and the writ does not lie for mere error which may be corrected by appeal or for defects in the form of the commitment. * * *
39 Am.Jur.2d Habeas Corpus, § 37.
The inquiry on a writ of habeas corpus is addressed, not to errors committed by a court within its jurisdiction, but to the question whether the proceedings or judgment under which the petitioner is restrained are void. Ordinarily, such an inquiry involves no questions other than those that pertain to jurisdiction. The function of a writ of habeas corpus in permitting the petitioner to challenge by collateral attack the jurisdiction under which the process or judgment of which he is deprived of his liberty was issued or rendered cannot be distorted by extending the inquiry to mere errors of trial courts acting within their jurisdiction.
39 Am.Jur.2d Habeas Corpus § 11 (1968).
Where relief is sought from a criminal judgment through habeas corpus, the scope of inquiry is limited to questions of jurisdiction and we inquire into the correctness of the acts of the trial court only to the extent of determining whether it acted within its jurisdiction, (citations omitted)
Davis v. Riedman, 114 N.W.2d 881, 882 (N.D.1962), citing 39 C.J.S. Habeas Corpus § 26a (3).
It is well settled in this State that a writ of habeas corpus cannot be utilized as a substitute for an appeal. The inquiry in this proceeding is limited to questions of jurisdiction and we may only inquire into the correctness of the acts, of the court to the extent of determining whether it acted within its jurisdiction. State ex rel. Smith v. Lee, Warden, 53 N.D. 86, 205 N.W. 314; State v. Floyd, 22 N.D. 183, 132 N.W. 662; In re Solberg, 52 N.D. 518, 203 N.W. 898; State v. Barnes, 29 N.D. 164, 150 N.W. 557, Ann. Cas. 1917C, 762; State ex rel. Styles v. Baeverstad, 12 N.D. 527, 97 N.W. 548; State ex rel. Neville v. Overby, 54 N.D. 295, 209 N.W. 552; Cook v. State, 54 N.D. 178, 208 N.W. 977; In re Cook, 54 N.D. 193, 209 N.W. 231; Ryan v. Nygaard, 70 N.D. 687, 297 N.W. 694; Secs. 32-2202 and 32-2217, R.C.N.D. 1943.
Mazakahomni v. State, 75 N.D. 73, 25 N.W.2d 772, cert. denied 333 U.S. 857, 68 S.Ct. 727, 92 L.Ed. 1137.
*472With these well known principles in mind, we will consider the question presented in this proceeding.
A county justice has jurisdiction to act as committing magistrate (N.D.C.C. § 29-01-15) when the defendant is brought before a magistrate (N.D.C.C. § 29-07-01), and if the defendant does not waive examination, the magistrate shall proceed to try the case (N.D.C.C. § 29-07-05). If the offense is bailable and the defendant is admitted to bail, but bail has not been taken, the defendant must be committed until bail is given (N.D.C.C. §§ 29-07-23 to -25).
The county justice has authority to issue a commitment on adjournment of the preliminary hearing for further examination (N.D.C.C. § 29-07-08 and § 29-07-09), as was done in this case, and to reissue the commitment upon the completion of taking testimony at the preliminary examination in this case (N.D.C.C. § 29-27-23 to -25).
From the foregoing it is unquestionable that the county justice had jurisdiction to act as committing magistrate before whom an accused must be brought for preliminary examination on a charge of having committed a public offense (N.D.C.C. § 29-07-01).
We come now to the question whether the jurisdiction of the justice court as a committing magistrate over the person of Fournier was impaired because of the alleged illegal arrest of him on an Indian reservation for an offense committed by him off the reservation.
In State ex rel. Styles v. Baeverstad, 12 N.D. 527, 531-2, 97 N.W. 548, 549 (1903), we said that the inquiry upon habeas corpus will extend no further than to ascertain whether the court issuing the process under which the prisoner is detained had jurisdiction of the case and acted within that jurisdiction in issuing the process.
Upon habeas corpus the court ordinarily will inquire no further than to ascertain whether the court or officer issuing the process on which the prisoner is detained had jurisdiction of the case, and acted within that jurisdiction in issuing the process. Church on Habeas Corpus, § 233; Cooley’s Const. Lim. 430; note to Koepke v. Hill, 87 Am.St.Rep. 172. Mere errors or irregularities of procedure, not affecting the question of jurisdiction, are never reviewable on habeas corpus; and, where the process is regular and valid upon its face, the inquiry will go only to the question of jurisdiction. Church on Habeas Corpus, § 236. The statutes of this state do not change or enlarge the function of the habeas corpus remedy. Under it the investigation must be confined to jurisdictional matters. The jurisdictional inquiry, however, will extend to the power of the court or magistrate to make the commitment. Jurisdiction to make the judgment or order is as essential as is jurisdiction of the person and of the subject-matter. [citations omitted] In State v. Losby (Wis.) 90 N.W. 188, it is said: “In reviewing the proceedings of officers exercising quasi judicial powers the function of the writ extends to keeping them within their jurisdiction, as well as reviewing matters of original jurisdiction. * * * ”
The court went on to say what inquiry the court should make in determining whether the court acted within its jurisdiction :
It can examine the evidence only sufficiently to discover whether there was any substantial ground for the exercise of judgment by the committing magistrate. It cannot go beyond that, and weigh the evidence. It can say whether the evidence rendered the charge against the prisoner within reasonable probabilities. That is all. When it has discovered that there was competent evidence for the judicial mind of the examining magistrate to act upon in determining the existence of the essential facts, it has reached the limit of its jurisdiction on that point. If the examining magistrate acts without evidence, he exceeds his jurisdiction; but any act, upon evidence worthy of consideration in any respect, *473is as well within his jurisdiction when he decides wrong as when he decides right.
State ex rel. Styles v. Baeverstad, 97 N.W. at 550.
The court then examined the evidence taken before the committing magistrate and found that there was evidence to support the finding: first, that an offense was committed, and, second, that there was cause to believe that the accused committed it. “This being true, the justice acted within his jurisdiction, and his finding is beyond review in this form of procedure.”
Fournier alleges that his arrest was illegal because the Ramsey County deputy sheriff was out of his bailiwick, the Indian reservation being in Benson County, and he had no authority to make the arrest; and that the Ramsey County deputy sheriff had no authority to make an arrest of an Indian on an Indian reservation for an offense committed off the reservation. It is immaterial whether the arrest of Four-nier was legal or illegal. The manner in which a person accused of a crime was produced in the jurisdiction where he is charged is not jurisdictional, does not impair the jurisdiction of the court, and the jurisdiction of the court cannot be attacked in a habeas corpus proceeding where he is held by the sheriff under a commitment issued by a court having jurisdiction of the subject matter and of his person.
A person accused of a crime and produced in the jurisdiction where he is so charged and held under processes legally issued from a Court of that jurisdiction cannot attack the jurisdiction of the Court nor its right to try him because of the manner in which he was produced before that Court. It makes no difference whether it be by force, kidnapping, illegal arrest, abduction, or faulty, incomplete or irregular extradition proceedings.
Dudley v. Corbett, 46 Misc.2d 205, 259 N.Y.S.2d 572, 576-577 (1965), citing Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; and Ker v. People of State of Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421.
In Frisbie v. Collins the United States Supreme Court said that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a forcible abduction.
This Court has never departed from the rule announced in Ker v. People of State of Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a “forcible abduction.” No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional-procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.
Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511-512, 96 L.Ed. 541.
Frisbie v. Collins has been followed in subsequent decisions of the federal circuit courts holding that an illegal arrest does not impair the jurisdiction of the court.
In Hobson v. Crouse the court said:
It may be that petitioner has further state remedies which he may be required to exhaust before coming to the Federal court, but we prefer to place affirmance on the firmly established rule of Frisbie v. Collins, ibid, to the effect that “ * * * the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction’ * * *and, that “ * * * *474due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards.”
Hobson v. Crouse, 332 F.2d 561 (10 Cir. 1964).
And in McCord v. Henderson the court quoted from Frisbie v. Collins:
“[T]he power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ ” Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952).
McCord v. Henderson, 384 F.2d 135, 136 (6 Cir. 1967).
And in Keegan v. United States the court said:
Appellant’s counsel first attacks the lawfulness of the arrest. Standing alone, this is not a ground for reversal. Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541; * * *.
Keegan v. United States, 385 F.2d 260, 264 (9 Cir. 1967).
In Fay v. Noia a state prisoner made application for a writ of habeas corpus on the ground that he had been deprived of his constitutional rights because he had been convicted on the basis of a coerced confession. The federal district court dismissed the application and the prisoner appealed. The court of appeals reversed the judgment and ordered that the prisoner’s conviction be set aside and that he be discharged from custody unless given a new trial. The state prison warden, and others, brought certiorari. The United States Supreme Court affirmed the court of appeals, the court holding that Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction resting upon a coerced confession obtained from him in violation of the 14th amendment, and had been deprived of his liberty without due process of law.
The Supreme Court enunciated several principles of the writ of habeas corpus which we believe are germane to the Four-nier case.
Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man’s imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. * * *
Fay v. Noia, 372 U.S. 391, 401-402, 83 S.Ct. 822, 828-829, 9 L.Ed. 837.
Nor is it true that a common law habeas corpus was available only to inquire into the jurisdiction, in a narrow sense, of the committing court.
Fay v. Noia, supra, at 830.
If the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the courts are to discharge him * * *; and the commitment is liable to the same objection where the cause is so loosely set forth, that the court cannot adjudge whether it were a reasonable ground of imprisonment or not.
Fay v. Noia, supra, at 830.
The course of decisions of this Court from Lange and Siebold to the present make plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas corpus even though imposed pursuant to the conviction of a federal court of competent jurisdiction.
The same principles have consistently been applied in cases of state prisoners *475seeking habeas corpus in the federal courts * * *.
Fay y. Noia, supra, at 832-833.
Fay v. Noia may be summarized to say that federal habeas corpus will be granted to release a state prisoner from imprisonment under a state conviction resting upon a coerced confession obtained from him in violation of the 14th amendment denying him due process of law, even when he has failed to appeal from his conviction when to do so may subject him to a greater penalty than that originally imposed.
We are of the opinion that Fay v. Noia is not relevant to this case because the detention of Fournier by the sheriff of Ramsey County under a commitment from the Ramsey County justice of the peace does not violate any of Fournier’s constitutional rights of due process of law under the 14th amendment.
There is nothing in the Constitution or laws of the United States exempting an offender, brought before the courts of a state for an offense against its laws, from trial and punishment, even though he was brought from another state by unlawful violence or abuse of legal process.
Therefore, in accordance with the general rule stated supra § 144, to the effect that a court will not inquire into the manner in which accused is brought before it, the fact that accused has been illegally arrested, or that he has by trickery, force, fraud, or without legal authority, or by any illegal means, been brought within the territorial jurisdiction of a state or federal court, does not oust the jurisdiction of that court, and this has been held true even though the Federal Kidnapping Act was thereby violated. Even if in any case there should be a conflict of jurisdiction between two courts, accused, who is before one court for trial, cannot take advantage of the fact that his presence has been illegally or improperly obtained. 22 C.J.S. Criminal Law § 146, at 391-392 (1961).
In Hobson v. Crouse, 332 F.2d 561 (10 Cir. 1964), in response to the argument of counsel that “under the expanded concept of due process and the availability of ha-beas corpus to vouchsafe it under the Fourteenth Amendment, we should overrule Frisbie v. Collins and grant the writ.” the Court held that Noia did not apply, saying, “We can find nothing in Mapp v. Ohio, ibid (367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 1081] or Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, which impels us to take the bold step suggested by counsel.”
In Hobson v. Crouse the prisoner applied to the federal district court for a writ of habeas corpus seeking to annul the state imposed sentence on the grounds of having been forcibly brought into the state for trial, his conviction violated due process of the 14th amendment. The trial court discharged the writ on the ground, among others, that unlawful extradition from the state of North Carolina into the state of Kansas was not such a denial of due process as to deprive the sentencing court of jurisdiction to accept a plea of guilty, citing Frisbie v. Collins.
In Bistram v. United States, 253 F.2d 610 (8 Cir. 1958), the prisoner contended that he was denied his constitutional rights and due process guaranteed by the 4th, 5th, 6th and 14th amendments to the Constitution. He contended that the officers who took him from the Nebraska jail did not have a warrant for his arrest; that, therefore, his arrest was illegal, and the federal district court of North Dakota which tried and sentenced him to prison lacked jurisdiction of his person; that this want of jurisdiction rendered the proceedings void and, therefore, the sentence must be vacated.
The court held:
For an equally cogent reason, appellant’s contention must be disallowed. It has long been a firmly entrenched prin*476ciple of federal jurisprudence that if the accused is personally before a court having jurisdiction of the subject matter, that court has jurisdiction over the accused regardless of how he was brought into the presence of the Court. * * *
Bistram v. United States, 253 F.2d 610, 612 (8 Cir. 1958), citing Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1952).
Fournier also argues that his arrest was illegal because he was arrested and removed from the reservation in violation of an extradition provision in the Devils Lake Sioux Tribal Code, and, therefore, he argues that the state should have applied to the tribal council to have him delivered to the state authorities under this provision of the Tribal Code, which reads as follows:
[Section] 1.2(d) With respect to any of the offenses enumerated in Chapter IV [Chapter IX] over which Federal or State courts may have lawful jurisdiction, the jurisdiction of the Devils Lake Tribal Court shall be concurrent and not exclusive. It shall be the duty of the said Devils Lake Tribal Court to order delivery to the proper authorities of the Federal or State government or of any other tribe or reservation for prosecution any offender, there to be dealt with according to law or regulations authorized by law, where such authorities consent to exercise jurisdiction lawfully vested in them over the said offender.
The Devils Lake Sioux Tribal Code of Justice relates to offenses committed on the reservation over which the federal or state courts may have lawful jurisdiction when the federal or state governments have assumed jurisdiction over the same offenses, and in respect to those offenses the jurisdiction of the Devils Lake tribal court shall be concurrent and not exclusive. This section does not relate to offenses committed by Indians off the reservation; it relates to offenses committed by Indians on the reservation only. The section then provides that when the federal or state authorities have consented to assume jurisdiction over those offenses (committed by Indians on the reservation) it shall be the duty of the tribal court to order delivery of any offender to the proper authorities of the federal or state government or any other tribe or reservation for prosecution.
The provision of the code is not an extradition statute; it provides that the tribal court shall have concurrent jurisdiction with federal or state courts when the federal or state courts have consented to assume jurisdiction over those offenses enumerated in chapter IX of the Tribal Code. It is unlike the code of the Navajo Indian reservation in Arizona, cited in the case of In the Matter of the Application for a Writ of Habeas Corpus of Wayne Turtle, Sr., in the United States district court for the district of Arizona.
The Devils Lake Sioux Tribal Code of Justice differs materially from the resolution of the Navajo tribal council providing for the extradition of alleged criminals from and to the Navajo reservation. The Navajo resolution provides that when an Indian has committed a crime outside of Indian country in Arizona, New Mexico or Utah, and is present on the Navajo reservation, he may be apprehended by the Navajo police and delivered to the proper state authorities in the manner and .according to the procedures provided for in that resolution.
The resolution of the Navajo tribal council relating to extradition of alleged criminals from and to the Navajo reservation reads as follows:
1. Whenever the Chairman of the Navajo Tribal Council is informed and believes that an Indian has committed a crime outside of Indian country in Arizona, New Mexico, or Utah and is present on the Navajo Reservation using it as an asylum from prosecution by the State, the Chairman may order any Navajo Policeman to apprehend such Indian and deliver him to the proper State authorities at the Reservation boundary.
*4772. If any person, being arrested as provided in the preceding paragraph so demands, he shall be taken by the arresting policeman to the nearest Navajo Court of Indian Offenses, where the Judge shall hold a hearing and if it appears that there is no probable cause to believe the Indian guilty of the crime with which he is charged off the Reservation, or if it appears that the Indian will probably not receive a fair trial in the State Court, the Judge shall order the Indian released from custody.
3. The Secretary of the Interior is respectfully urged to request legislation from Congress authorizing the Navajo Tribe to enter into extradition agreements with States to provide for delivery of Indian fugitives present on the Reservation to proper State authorities, and of Indian fugitives off the Reservation to proper Navajo authorities.
As the writ was granted in the Turtle case without written opinion, we do not know the reasons of the court for granting the writ. However, the Fournier case may be distinguished from the Turtle case on the facts. In the Fournier case, Four-nier was committed to the custody of the sheriff by a court of competent jurisdiction; whereas, in the Turtle case, Turtle was held under an extradition order of the Governor.
The question of the rights of an accused held under an extradition order of an executive officer of the state is not before us, and we will not discuss the question.
However, it has been held that the apprehension and arrest of an accused in violation of extradition proceedings does not deprive the court of jurisdiction of the defendant’s person. Ker v. People of State of Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886), and Frisbie v. Collins, supra.
We have found no citations wherein an illegal arrest has been held to be a violation of the due process clause of the 14th amendment to impair the court of jurisdiction.
Fournier was personally present in court, and under the foregoing authorities the county justice, as committing magistrate, had jurisdiction over the person of Four-nier.
Here the county justice had jurisdiction of the subject matter, since the complaint charged a crime, and as county justice ex-officio a committing magistrate, he was authorized to require and accept bail or to commit the defendant to the custody of the sheriff, and of the person, as Fournier was personally present in court, and it had the power to make the commitment in this case.
Therefore, as I am of the opinion that Fournier was in the lawful custody of the sheriff of Ramsey County under a legal and valid commitment of the county justice as committing magistrate I would quash the writ of habeas corpus.