STATE OF SOUTH DAKOTA v. BROWN

OPINION

RICHARDSON, J.

We examine the nature of the extradition powers and duties of the Governor of California. Is a mandatory obligation to comply with the extradition demand of another state imposed upon him by either the extradition clause of the United States Constitution (art. IV, § 2, cl. 2) or the provisions of California's Uniform Criminal Extradition Act (Pen. Code, § 1548 et seq.)? If so, may the courts of this state compel the Governor to discharge that duty? We will conclude that although the Governor's duty may be characterized as "mandatory," the judicial enforcement thereof is authorized neither by the federal Constitution nor the provisions of California's extradition act, and we will deny the petition of the State of South Dakota for a writ of mandate. (For purposes of clarity, the Uniform Criminal Extradition Act will be referred to herein as the Uniform Act, whereas California's own, slightly different version of the Uniform Act, will be referred to as the Extradition Act.)

On or about February 15, 1976, South Dakota presented an extradition demand to the Governor seeking extradition of Dennis James Banks. The demand alleged that Banks had been convicted of specified felonies in South Dakota and had fled to California while on bail. The Governor has not questioned the sufficiency of the demand nor has he expressly denied the request. Rather, he asserts that he is exercising his prerogative to "investigate" the equities of the case before acting on South Dakota's demand. South Dakota, on the other hand, insists that the Governor's extradition function is mandatory, once the conditions of the Extradition Act are satisfied, and seeks from us a writ of mandate to compel the state's Chief Executive to issue a warrant for Banks' arrest.

We emphasize at this point the very limited nature of our inquiry. We examine only the character of the Governor's extradition power, not the propriety of its exercise. Our sole function is to resolve, under applicable law, the question whether he possesses any discretionary power to refuse a demand for extradition which is in proper form. We express no opinion on the wisdom of his refusal thus far to honor South Dakota's demand under the particular circumstances of the Banks case.

As will appear, the subject of extradition is covered by both constitutional and statutory provisions which we now explore.

Article IV, section 2, clause 2, of the United States Constitution (hereafter, the Extradition Clause) 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." (Italics added.) Both the United States Supreme Court and this court have interpreted this clause as imposing on the state executive a mandatory duty to extradite upon demand. ( Kentucky v. Dennison (1861) 65 U.S. (24 How.) 66, 106 [16 L.Ed. 717, 728-729]; Appleyard v. Massachusetts (1906) 203 U.S. 222, 227 [51 L.Ed. 161, 163, 27 S.Ct. 122]; In re Russell (1974) 12 Cal.3d 229, 234 [ 115 Cal.Rptr. 511, 524 P.2d 1295].) Thus, in Dennison, supra, the high court first observed that the word "demand" in the constitutional provision denoted an "absolute right" to obtain extradition, thereby implying a "correlative obligation to deliver, without any reference to the character of the crime charged, or to the policy of the laws of the State to which the fugitive has fled." (65 U.S. at p. 103 [16 L.Ed. at p. 728].) The Dennison court characterized this constitutional duty as "ministerial," not "discretionary." ( Id., at p. 106 [16 L.Ed. at p. 729].)

Having so defined a governor's obligation, however, the Supreme Court further emphasized that neither the Extradition Clause nor the federal legislation implementing it contained any procedure whereby a governor's extradition duty might be judicially compelled. ( Id., at pp. 107-110 [16 L.Ed. at pp. 729-730].) As Dennison carefully explained, "The performance of this duty . . . is left to depend on the fidelity of the state executive to the compact entered into with the other states when it adopted the Constitution of the United States, and became a member of the Union. . . . [¶] [ I] f the governor . . . refuses to discharge this duty, there is no power delegated to the general government, either through the judicial department or any other department, to use any coercive means to compel him." ( Id., at pp. 109-110 [16 L.Ed. at p. 730], italics added.)

Subsequently, in Taylor v. Taintor (1872) 83 U.S. (16 Wall.) 366, 370 [21 L.Ed. 287, 290], the high tribunal reaffirmed Dennison, acknowledging very explicitly that "If [the Governor] refuse [to extradite a fugitive], there is no means of compulsion." (Italics added.)

South Dakota does not challenge the continuing force of these two Supreme Court expressions which are more than one hundred years old. It is generally accepted that federal courts lack any authority to compel a governor to deliver up a fugitive to a demanding state. Petitioner, however, would confine application of Dennison to the exercise of federal power. Relying on the rule, well established in California, that mandamus will issue to compel performance of a Governor's ministerial duties (e.g., Hollman v. Warren (1948) 32 Cal.2d 351, 354-355 [ 196 P.2d 562]; Jenkins v. Knight (1956) 46 Cal.2d 220, 222-223 [ 293 P.2d 6]), South Dakota argues that a state court may enforce the mandate of the Extradition Clause. In this connection, however, petitioner has neither cited, nor have we found, a single case in the history of the Republic in which any state court has issued mandamus to compel extradition. We may not lightly ignore this fact. The absence of such authority appears to reflect the uniform acceptance of the highest state courts that, following Dennison and Taylor, without any specific implementing legislation, the constitutional duty of the state executive to extradite a fugitive is not judicially enforceable by either federal or state sanction. Indeed, courts from several of our sister states have expressly so held. (See People v. Millspaw (1939) 257 App. Div. 40 [12 N.Y.S.2d 435, 437] [citing Dennison and Taylor], revd. on other grounds 281 N.Y. 441 [ 24 N.E.2d 117]; Carpenter v. Lord (1918) 88 Or. 128 [171 P. 577, 578]; Ex Parte Wallace (1951) 38 Wn.2d 67 [ 227 P.2d 737, 738].)

The California law on the point was established very early by a case which, although it was decided before both Dennison and Taylor, nonetheless anticipated their results and clearly recognized that in California mandate would not lie to order compliance with the constitutional obligation to extradite. ( In re Manchester (1855) 5 Cal. 237.) As we observed in Manchester, "the Courts of the State possess no power to control the Executive discretion, and compel a surrender [of a fugitive]. . . ." (P. 238, italics added.) Even though subsequent cases, cited above, have characterized the Governor's constitutional duty as "mandatory," none of them has suggested that the obligation contained in the federal Constitution is judicially enforceable. No implementing legislation either mandated or authorized any enforcement procedure. The recognition of this fact is not new, but was stressed shortly after California's adoption of the Uniform Act by our esteemed colleague, Justice Mosk, then secretary for Governor Culbert Olson with responsibilities for the conduct of extradition hearings. Writing in the April 1939 issue of the State Bar Journal in reference to the extradition language of the federal Constitution, Justice Mosk noted that "although its provisions are mandatory upon the executive authority of each state, they were not made self-executing." (Mosk, Extradition Procedure in California (1939) 14 State Bar J. 121.) He observed that the varying provisions of state statutes handicapped the administration of criminal justice and ultimately prompted the adoption of the Uniform Act. ( Ibid.) As developed more fully below, the author concluded that, by reason of the Dennison decision, the Governor, not the courts, has the "final authority" in extradition matters. ( Id., at p. 125.) (1) From all of the foregoing we conclude that while the federal Constitution imposes upon the Governor a mandatory obligation to extradite a fugitive to a demanding state, the Constitution does not empower the courts, federal or state, to enforce that duty by writ of mandate. No case has so held. Rather, the Constitution leaves the faithful execution of the extradition obligation in the hands of the state executive, trusting, in the words of Dennison, in the Governor's "fidelity" to the federal Constitution.

If the United States Constitution creates no judicially enforceable duty to extradite a fugitive to a demanding state, is there any independent basis for such an obligation? South Dakota contends that the provisions of our state Extradition Act impose such a judicially enforceable responsibility. For reasons which we explain below, the Extradition Act, when read as a whole and examined within its historical context, does not support such an interpretation.

(2) It is well established that states may agree among themselves to deliver up persons whose rendition is not required by the Extradition Clause ( Innes v. Tobin (1916) 240 U.S. 127, 134-135 [60 L.Ed. 562, 565-566, 36 S.Ct. 290]), and to extradite persons within that provision on terms less exacting than those established by federal implementing legislation ( In re Morgan (1966) 244 Cal.App.2d 903, 910 [ 53 Cal.Rptr. 642]). Uniform laws to accomplish this purpose, such as the Uniform Act, do not offend the clause which was not intended to limit the right to extradition. ( New York v. O'Neill (1959) 359 U.S. 1, 10-11 [3 L.Ed.2d 585, 591, 79 S.Ct. 564].) (3a) We accordingly inquire, did the California Legislature in adopting the Extradition Act intend to impose upon the Governor a judicially enforceable duty to extradite?

As originally proposed, section 7 of the Uniform Act read in part: "If the Governor decides that the demand should be complied with, he shall sign a warrant of arrest. . . ." (11 U. Laws Ann., p. 180.) California, alone among the adopting states, modified the above language to read: "If a demand conforms to the provisions of this chapter, the Governor . . . shall sign a warrant of arrest. . . ." (Pen. Code, § 1549.2; for enactments of other states, see 11 U. Laws Ann., supra, p. 181.) We are urged by petitioner to interpret this revision as an expression of legislative intent to deprive the California Governor of any and all discretion and to make his duty to issue an extradition warrant a purely ministerial act which is subject to judicial enforcement.

The principal difficulty with the South Dakota argument is that the language of the Extradition Act (and of previous California extradition statutes) closely conforms to the language of the Extradition Clause itself, which has long and consistently been interpreted as imposing a duty which, despite its apparent "mandatory" nature, has not been judicially enforceable.

California's original extradition statute was enacted in 1851. It provided, in language substantially similar to the Extradition Clause, that "A person charged in any State or Territory of the United States, with treason, felony, or other crime, who shall flee from justice, and be found in this State, shall on demand of the executive authority of the State or Territory from which he fled, be delivered up by the Governor of this State, to be removed to the State having jurisdiction of the crime." (Stats. 1851, ch. 29, § 665, p. 286, italics added.) As previously noted, in 1855 we recognized that, notwithstanding this mandatory language, state courts had no power to control the Governor's discretion in extradition matters. ( In re Manchester, supra, 5 Cal. 237, 238.) Although in Manchester we did not expressly refer to the state's 1851 extradition statute, we did refer to the federal Extradition Clause and implementing statutes which contained substantially identical language.

In 1872 the extradition provisions were rephrased and renumbered as part of the formal codification of California's Penal Code. The references to "territories" were omitted, and the words "shall on demand" were deleted in favor of the words "must, on demand." (Pen. Code, former § 1548.) We attach little, if any, significance to the statutory substitution of the term "must" for "shall." Of considerably greater import, in our view, is the fact that the language of the 1872 statute was adopted by the Legislature 10 years after the United States Supreme Court's expression in Dennison, supra, 65 U.S. (24 How.) 66, that the Governor's duty was unenforceable by the federal courts, and 16 years after our own pronouncement in In re Manchester, supra, 5 Cal. 237, that our state courts are not empowered to control executive discretion in extradition matters. Presumably, the Legislature in 1872 knew of both the Dennison and Manchester interpretations. Furthermore, the 1872 Penal Code specifically provided that, "The provisions of this Code, so far as they are substantially the same as existing statutes, must be construed as continuations thereof, and not as new enactments." (Pen. Code, § 5, italics added.) In accordance with well settled rules of statutory construction (see, e.g., Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen (1960) 54 Cal.2d 684, 688-689 [ 8 Cal.Rptr. 1, 355 P.2d 905]) it is reasonable to conclude that former section 1548, therefore, should be interpreted as incorporating those judicial limitations articulated in both Dennison and Manchester, thereby perpetuating a measure of executive discretion in extradition matters, free of judicial control.

California's extradition statutes remained substantially unchanged until the Uniform Act was adopted (with some modifications) in 1937. (Stats. 1937, ch. 554, p. 1581.) As we have related above, our Extradition Act now provides that "If a demand conforms to the provisions of this chapter, the Governor . . . shall sign a warrant of arrest. . . ." (Pen. Code, § 1549.2; see also § 1548.1 ["duty" of Governor to extradite].) This language, although phrased in mandatory terms, is once again substantially similar to the language of the Extradition Clause and the earlier California extradition statutes previously described. In Dennison, the high court, in examining similar language, specifically noted that although Congress, in federal implementing legislation, had provided that "It shall be the duty" of the Governor to extradite a fugitive on demand, nevertheless ". . . the court is of the opinion, the words `it shall be the duty' were not used as mandatory and compulsory, but as declaratory of the moral duty which this compact [between the States] created, when Congress had provided the mode of carrying it into execution. The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State. . . ." ( Dennison, supra, 65 U.S. at p. 107 [16 L.Ed. at p. 729], italics added; see also Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 573 [ 203 P.2d 758] [whether a statute was intended as mandatory or directory cannot be determined solely from its language that certain formalities "shall" be followed].)

Similarly, the Extradition Act (as well as earlier versions of California extradition statutes), though phrased in mandatory language, contains no procedure whatever by which the Governor's duty may be judicially enforced. Moreover, no source of legislative history has been cited, and none has been found, which even remotely suggests that the purpose of the Legislature's adoption of the Extradition Act in 1937 was to change the long-standing preexisting rule ( In re Manchester, supra, 5 Cal. 237, 238) that state courts may not enforce the Governor's extradition duties. It seems logical to conclude that if such a radical departure from existing law was intended, the Legislature would have made such intent abundantly clear either by directly circumscribing the exercise of executive discretion or by authorizing increased judicial participation in and review of the extradition process. Instead, the Legislature readopted language bearing an historic interpretation precluding judicial enforcement.

(4) We have said, as a general rule, that when the Legislature enacts a law "framed in the identical language" of a previous law on the same subject, it is presumed that the new law has the same fundamental meaning as the old law. ( Los Angeles Met. Transit Authority v. Brotherhood of Railroad Trainmen, supra, 54 Cal.2d 684, 688-689.) While the language of the Extradition Act is not "identical" with that of earlier statutory language, it is substantially similar. In view of the context in which Penal Code section 1549.2 was enacted, logic suggests that this provision receive a construction which continues the preexisting interpretation of judicial restraint or abstention in extradition matters. It is likely that the Legislature chose to frame the obligation to extradite in mandatory terms in order to avoid the appearance of inconsistency with prior federal and state law, and to emphasize the Governor's high obligation to carry out the extradition laws. We find nothing whatever in the legislative history of section 1549.2, ancient or recent, which suggests that the Legislature intended to authorize judicial enforcement of extradition demands.

The validity of the foregoing interpretation is reinforced by an examination of other provisions of the Extradition Act. In this connection we are aided by two general rules of statutory construction. We have held that "a statute should be construed with reference to the entire statutory system of which it forms a part in such a way that harmony may be achieved among the parts. . . ." ( Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [ 80 Cal.Rptr. 89, 458 P.2d 33]; accord Clean Air Constituency v. California State Air Resources Bd. (1974) 11 Cal.3d 801, 814 [ 114 Cal.Rptr. 577, 523 P.2d 617]; County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 639 [ 122 P.2d 526].) (5) Furthermore, in ascertaining the legislative intent underlying the extradition statutes, we must concentrate upon the "`general tenor and scope of the entire scheme embodied in the enactments'" rather than upon the "`exact phraseology in which the intent has been expressed. . . .'" ( In re Morgan, supra, 244 Cal.App.2d 903, 910.)

Penal Code section 1554, unamended since its enactment, was taken verbatim from section 21 of the Uniform Act. (11 U. Laws Ann., supra, at p. 277.) The section provides that "The Governor may recall his warrant of arrest or may issue another warrant whenever he deems it proper." (Italics added.) Clearly, a construction of the act which imposes on the Governor a judicially enforceable duty to issue an extradition warrant while, at the same time, conferring upon him absolute discretion to recall his warrant would create absurd results. It is a fundamental rule of statutory construction that statutes should be construed to avoid anomalies. (See People v. Oliver (1961) 55 Cal.2d 761, 767 [ 12 Cal.Rptr. 865, 361 P.2d 593].) Recognizing this problem, South Dakota urges us to interpret section 1554 as procedural in nature, thus allowing the Governor to withdraw his warrant only if it is no longer necessary or if it contains some formal or procedural defect. Such an interpretation, however, strains the statutory language which, using general terms, expressly and without apparent limitation states that the Governor may recall the warrant "whenever he deems it proper."

It is further argued that section 1554 is inapplicable to warrants issued by the Governor in response to extradition demands from another state. Instead, it is urged, section 1554 concerns only the recall of warrants which are issued by the Governor to secure a fugitive received from another state in response to California's extradition demand. In other words, it is contended that while the Governor may, at will, revoke a warrant issued in support of extradition to California he may not do so in cases of extradition from this state. A close examination, however, of the provisions of the Extradition Act readily refutes this contention.

As we have previously noted, section 1549.2 of the Extradition Act (derived from § 7 of the Uniform Act) directs the Governor to issue an arrest warrant once a proper demand has been received from another state. This section, and (with one exception) all other sections of the act which precede section 1554, relate to the subject of compliance with out-of-state extradition demands. (Section 1549 allows the Governor by agreement with another state to accomplish extradition to California despite the pendency of criminal proceedings in the other state.) It seems readily apparent that, using a common sense approach, the phrase "his warrant of arrest" in section 1554 (§ 21 of the Uniform Act) must refer to the arrest warrant specified in the preceding section 1549.2 (see also §§ 1549.3-1550.3, 1552-1552.2). We also observe that the subject of demanding extradition to California (and the issuance of an arrest warrant upon delivery of the fugitive to California) first appears in a subsequent section of the act (§ 1554.1; § 22 of the Uniform Act). If South Dakota's construction of legislative intent is accepted, this would seem an odd placement and an unusual statutory sequence. One would reasonably anticipate that the subject of the recall of a warrant (§ 21 Uniform Act; Pen. Code, § 1554) would follow rather than precede the substantive discussion of the warrant (§ 22 Uniform Act; Pen. Code, § 1554.1 et seq.). Although section 1554 may arguably apply to both extradition to and from California, a point we need not now decide, we discern no reason whatever for limiting the application of the section to California's demands of extradition from other states. Our research discloses only one case interpreting section 21 of the Uniform Act (Pen. Code, § 1554) and it assumed, as we do, that the section applies to the extradition demand of another state. (See Ex Parte Oxford (1953) 158 Tex.Crim. 435 [ 256 S.W.2d 105, 106].)

In addition to section 1554, another provision of the Extradition Act also strongly suggests a legislative intent to confer some degree of discretion upon the Governor in acting in response to extradition demands. Section 1548.3, unamended since its adoption, is substantially similar to section 4 of the Uniform Act. (11 U. Laws Ann., supra, p. 154.) Section 1548.3 provides that "When a demand is made upon the Governor of this State by the executive authority of another State for the surrender of a person so charged with crime, the Governor may call upon the Attorney General or any district attorney in this State to investigate or assist in investigating the demand, and to report to him the situation and circumstances of the person so demanded, and whether he ought to be surrendered according to the provision of this chapter."

It would seem reasonable to conclude that if the Governor's only duty in extradition matters was to determine the adequacy of the extradition papers, the Legislature in adopting section 1548.3 logically would have limited the authority of the Attorney General or district attorney to the investigation of the formal sufficiency of the demanding papers and to report simply whether extradition was required. Instead, the statute authorizes a broader investigation into the "situation and circumstances of the person" and a recommendation as to whether the fugitive " ought to be surrendered." (Italics added.) These provisions would appear to be pure surplusage if the Governor's duty was solely a ministerial one of surrendering the fugitive whenever the papers are found to be in proper order and the person sought is properly identified. But, we have held that "`A cardinal rule of construction is that . . . a construction making some words surplusage is to be avoided.'" ( People v. Gilbert (1969) 1 Cal.3d 475, 480 [ 82 Cal.Rptr. 724, 462 P.2d 580].) Application of such a rule favors the Attorney General's claim of gubernatorial discretion.

Pointing to other sections of the Extradition Act, South Dakota reminds us that, in contrast to the mandatory language of section 1549.2, discussed above, the sections of the act which govern cases of extradition falling outside the Extradition Clause are framed in permissive terms. These provisions specify that the Governor "may" extradite a fugitive in those cases in which he has left the demanding state involuntarily (§ 1549), or was not present in the demanding state when he caused a crime to be committed therein (§ 1549.1), or is awaiting trial in this state (§ 1553.1). The inference suggested by this argument is that the Legislature having expressly used the term "may" in describing certain discretionary extradition situations must thereby have meant that the term "shall" imposed a mandatory duty on the Governor. Sections 1549, 1549.1, or 1553.1, however, are in no way inconsistent with the premise that section 1549.2 was not intended to create a judicially enforceable duty to extradite. The foregoing provisions pertain to special factual circumstances in which, by their very nature, extradition may not be appropriate. The Legislature, accordingly, would have had no reason in such cases to have adopted language reflecting any constitutionally imposed duty to extradite.

We are moved to our conclusion herein by another factor of considerable force. We have held that ". . . the contemporaneous administrative construction of the enactment by those charged with its enforcement and interpretation is entitled to great weight, and courts generally will not depart from such construction unless it is clearly erroneous or unauthorized." ( City of Los Angeles v. Rancho Homes, Inc. (1953) 40 Cal.2d 764, 770-771 [ 256 P.2d 305].) (6) Our interpretation of the Extradition Act is supported by the contemporaneous construction of a succession of former California Governors of which construction we may take judicial notice (Evid. Code, § 452, subd. (c)). The Attorney General has represented to us, citing examples, and without challenge, that Governors Olson, Knight, Brown, Sr., Reagan, and Brown, Jr., for varying reasons have declined to honor extradition requests which have been in proper form.

We are able to document that the foregoing practice has extended almost 40 years because again we find that Justice Mosk identified, in his careful analysis written in 1939, the kind of case invoking gubernatorial discretion. He observed that "Occasionally there arises an exceptional case in which the ends of justice require particular consideration." (Mosk, supra, 14 State Bar J. at p. 125.) He cited the example of an escapee from custody in a southwestern state who for a period of 17 years led a blameless life, and concluded that "it would seem to have been a miscarriage of justice to have returned him to the demanding state." Governor Olson declined to return him. Doubtless, it was this conclusion that prompted the editors of the State Bar Journal to preface the article with the headnote "Governor can prevent miscarriage of justice by refusing extradition." In the same vein the article continues, "That raises the question of whether or not a governor may be compelled to return a fugitive when he thus arbitrarily determines against so doing. No cases have arisen in California, but the issue was decided in an early federal case, Ex Parte Kentucky v. Dennison. . . ." ( Ibid., italics added.) Following a quotation from Dennison, and noting that as a practical matter former California Governors had complied with the federal and state Constitutions, Justice Mosk concludes: " Thus it would appear that the executive, in the last analysis, has the final authority in determining his duty in extradition problems." ( Ibid., italics added.) Our interpretation is not new.

The general acceptance of the practice of a succession of California Governors who, since Governor Olson, have on occasion, wisely or unwisely, declined to honor extradition demands is "entitled to great weight." ( City of Los Angeles v. Rancho Homes, Inc., supra, 40 Cal.2d at p. 770.) This uniform practice over many years is a factor which favors its preservation. While in no sense either controlling or persuasive because of differing constitutional and statutory language, we note that indeed this practice is indulged by our sister states and is apparently reciprocal, for the Attorney General represents to us that during the period 1959 to 1976, 84 separate requests by the California Governor for extradition to California of fugitives were declined by the governors of other states.

We note additionally similar evaluations which have been made by legal writers. Thus the author of 2 California Criminal Law Practice (Cont.Ed.Bar 1969) in section 27.11, at page 722, concludes that "no power exists to compel the governor to [extradite]. . . ." While describing a California Governor as lacking "true discretionary power" to decline extradition, nevertheless ". . . resisting extradition is neither a hopeless fight nor a meaningless gesture. There is occasionally an exceptional case in which counsel can clearly demonstrate that ordering return of the fugitive to the demanding state would amount to a gross miscarriage of justice. This is the case that should be presented to the governor for his consideration through an extradition hearing." ( Id., § 27.26 at p. 730; see also Note, 2 Lincoln L.Rev. (1966) 48, 51-52, fn. 14; Note, 66 Yale L.J. (1956) 97, 106 and fn. 47, 107-109; 31 Am.Jur.2d, Extradition, § 48, pp. 956-957.)

Finally, several considerations of public policy support and commend an interpretation of the Extradition Act permitting the Governor to exercise some discretion in refusing extradition in an appropriate case. Doubtless, individual circumstances surrounding extradition demands are varied and diverse, thus rendering peculiarly inappropriate the mechanical application of fixed and absolute rules if justice is to be achieved in a particular case. It would be a harsh rule that stripped the Governor of all power to deny extradition in a case in which, for example, the Governor is satisfied that a fugitive, since residing in California, has established himself as a worthy law-abiding citizen, or in which his physical safety or right to a fair trial cannot be assured in the demanding state, or the offense charged does not constitute a crime in California. In a given case, various unanticipated equitable considerations may be paramount. As the Attorney General has properly urged in his brief before us, discretion is the technique by which the law guarantees that the application of norms will, in fact, achieve the objectives for which they were designed.

In 1960, former Chief Justice Traynor wisely observed that "Protection from unjustified extradition does not lie in reading into the extradition laws purely technical requirements . . . but in the sound judgment of the respective Governors charged with the administration of those laws. Their judgment is entitled to great weight." ( In re Cooper (1960) 53 Cal.2d 772, 779 [ 3 Cal.Rptr. 140, 349 P.2d 956], italics added.) We are satisfied that such an observation retains its essential validity today, and that as a matter of public policy courts may not enforce the Governor's duty to comply with extradition demands. Although that duty may be considered mandatory in nature under the constitutional and statutory provisions discussed above, in unusual cases a potential miscarriage of justice may call for that discretionary exercise of "sound judgment." We would not serve the ends of justice if we attempted judicial interference with the Governor's discretion. We do not discuss here the extent to which the Governor's final action may be reviewable for abuse of discretion.

(3b) Having determined that the Governor possesses discretionary power to refuse an extradition demand, we conclude by observing that the Governor does have an obligation enforceable by mandamus to exercise that discretion, either by granting or denying South Dakota's demand. (See Anderson v. Phillips (1975) 13 Cal.3d 733, 737 [ 119 Cal.Rptr. 879, 532 P.2d 1247]; Hollman v. Warren, supra, 32 Cal.2d at p. 355.) The demand was presented to the Governor on February 15, 1976, and since that date the matter presumably has been under the Governor's investigation and subject to the present litigation. No principle of law applicable to the case justifies a refusal by the Governor, within a reasonable time, either to grant or deny the demand properly before him. Faced with such a demand the Governor may say yes or no. What he may not do is say nothing.

The alternative writ of mandamus is discharged and the petition for a peremptory writ is denied.

Tobriner, Acting C.J., Manuel, J., Newman, J., and Racanelli, J., concurred.