Argento v. North, Civ. A. No. 31713.
| Decision Date | 26 May 1955 |
| Docket Number | Civ. A. No. 31713. |
| Citation | 131 F. Supp. 538 |
| Parties | Tommaso ARGENTO, Relator, v. Xavier NORTH, U. S. Marshal, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
A. R. Fiorette and Creighton E. Miller, Cleveland, Ohio, for relator, Tommaso Argento.
Sumner Canary, U. S. Dist. Atty., Cleveland, Ohio, for respondent Xavier North.
Bulkley, Bulter & Rini, Cleveland, Ohio, submitted briefs on behalf of the Italian Consul.
Relator, an Italian national, has herein applied for a writ of habeas corpus, on the ground that his requested extradition to Italy is illegal, in that no valid treaty now exists between the United States of America and Italy, which would authorize such extradition.
He further claims that the treaty entered into in 1868 between such countries on such subject was abrogated by war as of December 11, 1941.
The Republic of Italy, which has herein requested the extradition of relator on a charge of murder, claims that such treaty is still in effect. No other question is before this court.
Such certificate further relates that as of February 6, 1948, the United States Government notified Italy that we desired to keep in force or revive certain pre-war bilateral treaties and other international agreements with Italy. It specifically enumerated those on Arbitration, Aviation, Conciliation, Consuls, Debt-Funding, Extradition, Narcotic Drugs, Navigation, Passport Visa Fees, Postal, Taxation and Trade-Marks. It specifically enumerated past Extradition agreements desired to be kept in force or revived, as follows:
It is the contention of relator that such notification to Italy of our Government's desire to keep in force or revive such treaties was null and void and of no effect because it emanated from the State Department of the U. S. Government. Relator contends that such action of our State Department constituted the usurpation of a power belonging to the U. S. Senate alone. Relator contends that war dissolved and abrogated the former treaty and that the only legal way in which extradition could now be had would necessarily be either through its revival by approval of the U. S. Senate or the negotiation of another treaty. Relator says that for lack of same he is entitled to be released. He contends that it was beyond the powers of the political department of our Government to determine which treaties could be kept in force or revived.
On the twelve subjects herein sought to be kept in force or revived by Article 44 of Section 9 of the bilateral treaty aforementioned, 61 Stat. 1386, there is no question but that in the ensuing eight years our respective governments have acted in accord therewith; there is no question but that during such time the U. S. Senate has not undertaken to question the power of the political branch of the government so to act; nor has either of the two respective governments involved ever since questioned the propriety, legality, efficacy or continuation thereof.
Eminent counsel for relator have here raised a most unique and ingenious question; it is not one of construction alone, but as to whether or not a treaty exists at all. Needless to say, for this court to hold that such treaty does not exist at all for the reasons claimed by relator, would be tantamount to judicially deciding that for the past eight years on the twelve highly important subjects set forth in such treaty, our government has constantly acted without authority of law, and that our U. S. Senate has meanwhile utterly failed in understanding, appreciating, or doing its plain duty. It would further be tantamount to judicially deciding that until future prospective treaties on such twelve highly important subjects can be again negotiated by the executive branch of our government and ratified by the U. S. Senate, or specifically revived by approval of the U. S. Senate, that all such international relationships now in force or process are null, void, and of no legal effect.
Relator's counsel suggests that the U. S. Senate conceivably might now quickly approve the past actions of the Executive Department in reviving the treaty. Such future suggested possibility in no wise lessens the responsibility herein expected to be assumed by the court should it undertake to judicially determine that for the past eight years our government through the alleged usurpation of power on the part of its executive branch and the alleged...
To continue reading
Request your trial
-
Argento v. Horn
...only in the declaratory judgment action, no appeal having been taken from the court's denial of a writ of habeas corpus, Argento v. North, D. C.1955, 131 F.Supp. 538. The propriety of an action for declaratory judgment to test the legality of a completed extradition hearing is open to serio......
-
United States v. Jacobs
...States Commissioner, petitioner filed a petition for writ of habeas corpus in this Court, which was denied on May 26, 1955. Argento v. North, D.C., 131 F.Supp. 538. Subsequent to the order of the Commissioner, petitioner filed an action in declaratory judgment in this Court, which was denie......