8% Satlij JJniBpwtflr
PUBLISHED 1?Y
STEWART & SELBY, Proprietors
TERMS.
Dally Prospector.
By carrier, per month .-$ 1.00
By mail, per annum .$10.00
The Weekly Miner.
By carrier, per month .$ .40
By mall, per annum .$ 3.00
The Daily Prospector and Week
ly Miner, by carrier, to one ad
dress, per month .$ ldKJ
The Daily Prospector and Weekly
Miner, by mail, to one address
only, per year . $12.50
Business Office and Editorial Rooms,
TEL. 152
Advertising Rates on Application.
MONDAY, DECEMBER 6, 1915
T TTi • »'■
$400II YEAR
At Time Wharf Was Built Citi
zens Wanted Dock So Badly a
Subscription Was Taken Dp.
We print below Judge Brown’s de
cision in the case of the City of Val
dez vs. The Valdez Dock Company, a
Corporation.
Judge Brown’s opinion is analyti
cal and is absolutely fair and impar
tial to both sides. If anything he
has given the city the best of his
opinion all through. He shows very
clearly that the confiscatory methods
employed by the City would work
great harm to our business interests.
Several important features pre
sented themselves in the evidence at
this trial, among them being the fact
that instead of the citizens fighting
the company and forcing them to en
ter the city in the night, they so far
desired the wharf that a subscription
was taken up to help the builders,
and many hundred dollars donated.
Another fact which is worthy of con
sideration is that contrary to the re
port of His Honor that the Dock Com
pany did business in the city and con
tributed nothing towards its support
that the Dock Company was pay
ing a license of ten cents per ton,
amounting to over four hundred last
year, and that the approach and shore
buildings were assessed a good round
bum besides. The evidence also
showed that instead of the city desir
ing to regulate the company they
were trying to put them out of busi
ness entirely.
We ask our readers to weigh this
evidence carefully and impartially
and see if the statements that the
Dock Company has been of no finan
cial benefit to the town is not only
unjust, but is false in every particu
lar, as shown in the following:
Valdez Bay *s> three miles lr
width. It is entirely surrounded by
high mountains rising precipitately
from the water’s edge except in r.
few places where a stream or valley
between the mountains has formed '«
flat or gravel bar. Valdez is situated
on such a flat, three or four miles in
width and running back about four
miles to the face of Valdez Glacier.
Lying along the water front of
Valdez is a mudflat more than fifteen
hundred feet from the mean high
tide out to deep water.
At the outer edge of this mud flat
the water deepens abruptly from
ground exposed at extreme low tide
to hundreds of feet in depth. So deep
is the water that it, like many of the
Pacific Coast ports, is difficult to se
cure anchorage in.
Valdez was first settled in 1898.
On June 11, 1901, the town was in
corporated by order of this Court,
under Chapter 21 of the Civil Code
of Alaska (Carter’s Code); owing to
a mistake in the description of Gie
boundaries, an order was made Nov
ember 22, 1804, correcting said (fe
scription, which last order was made
as of date June 11, 1901. The cor
porate limit or boundary line of said
town along the water front was es
tablished as meandering along the
line of mean high tide.
Prior to February 7,-1914, the cor
porate limits of Valdez were extend
ed over only about one-half of its
present limits. At the date of incor
poration (June 11, 1901) and ac
cording to the order incorporating
-THE
EMPRESS
. TO-NIGHT
2 Shows—at 8 and 9:20,sharp
PROGRAM
PATHB WEEKLY NO. 57
WILD WEST SHOW
ON SUSPICION,
Fine 2-Act Drama
TELL-TALE KNIFE,
CUPID BACKS THE WINNER,
Comedy
SELECT MUSIC
Mary iMckford In “Teas of the
Storm Country’* next Thursday
iJ-.:..:,. ok« 10r.
the same, the northerly or westerly
boundary there of extended to a line
about midway of what was then call
ed Reservation Avenue, now called
Alaska Avenue; all to the west or
north of that fine was covered by
and occupied as a military canton-,
ment or reservation. Military occu
pancy thereof, except a small portion
reserved for public purposes was
withdrawn about July, 1902, and the
residents of Valdez located, platted
and settled upon the same, laying
out streets by common consent.
February 7, 1914, pursuant to an
Act of Congress giving power so to
do, the corporate limits of said town
were by order of this court enlarged
and extended over said former reser
vation ; the waterfront limit or boun- j
dary being established as before, to
wit, along the meandered line of
mean high tide.
The materiality of this is shown by
reason of the fact that the approach
of the defendant’s dock as originally
constructed and as at present main
tained, began at a point about 350
feet on the upper or landward side
of said mean high tide line, and on
said Alaska avenue, at a time when
said avenue or street was only twen
ty-five feet in width, and all that por
tion of said approach on the north
erly or westerly side, or Reservation
side, or said street or avenue, would
not be in or in front of any portion
of the Town of Valdez in 19.02 when
said dock was so constructed. This
situation is clearly shown on defen- i
dant’s map, Exhibit No. 5.
Up to the year 1902, passengers to
be landed at Valdez from ocean
steamers coming from Seattle and
other points, were taken on row
boats from the steamers, rowed as
far. towards town as the condition of
the tide would permit, and then re
quired to walk over the mud flat to
dry land. Freight was placed in
scows which were hauled to points
on or over said mudfiat where the
receding tide would leave them, and
teams would drive down and unload
so long as the condition of the tide
would permit. The tides at this port
rary in height from ten to fourteen
feet. The population of Valdez fluc
tuates, being from 1000 to 1500 peo
ple.
Early in 1902 the'defendant dock
:ompany, or its predecessors in inter
est, constructed the dock which is the ,
subject of this controversy, although
it can hardly be called the same dock,
so much has it been repaired and
added to; the long approach, over
1500 feet in length, however, cross
ing said mudfiat is practically in the
same position as constructed in 1902,
except that since a disastrous fire oc
curring in Valdez on July 15, 1915, '
about five hundred feet of the ap
proach nearest to town which was
burned has been reconstructed, at a
slightly different angle, from the foot 1
of Alaska avenue (formerly called
Reservation Avenue). No franchise
was ever asked for or granted by the 1
Common council of the Town of Val
dez to construct, operate or main- 1
tain this wharf, and the dock com- 1
pany has at all times charged wharf
age for freight handled or stored on
said dock.
' The defendant is a corporation or
ganized under the laws of Alaska, j
Section 798, Compiled Laws of Alas- i
ka, provides for the formation of pri- ■
vate corporations for the following
purposes, among others:
“Subdivision 4. To construct
and operate smelters, electric and ;
other power and lighting plants,
dockj, wharves, elevators, ware
houses and hotels in Alaska.”
Section 2569, Compiled Laws of
Alaska, provides for an annual li
cense of ten cents per ton on freight '
handled or stored on public docks,
wharves and storehouses.
Section 630, Compiled Laws of
Alaska, provides that all license mon
eys collected by the clerk of the dis
trict court (license moneys provided
for in said Section 2569), within the ;
dmits of any incorporated town, shall ,
oe paid over to the treasurer of such
•.own to be used for school and muni
cipal purposes within the town.
The defendant has presumably
paid this license tax for many years;
which according to the testimony
would amount in the last year to
more than four hundred dollars.
Some time in 1903 or 1904 the!
Common Council of Valdez granted |
a franchise to Geiger and McPhee to'
construct, maintain and operate a I
wharf beginning at the foot of Key
stone avenue in said town. Said wharf
was thereupou constructed and main-!
earned and operated, and wharfage
charged for its use, until the first.day
of August, 1910, when the Town of
Valdez, by and through its? regularly
elected and acting authorities, pur
chased said wharf and has ever since
owned and operated the same.
On the 19th day of August, 1916,
the Common Council of the Town of
Valdez passed Ordinance No. 90,
which provided for harbor limits for
said town, fixing rates of wharfage
to be charged on the wharf owned
by the town, and by Section 4 thereof,
prohibiting any person or corporation
from charging or collecting wharfage
on freight landed within said harbor
limits, which said limits cover the
sjface occupied by the dock of the de
fendant company.
October 27, 1916, defendant com
pany was charged before the munici
pal magistrate of the Town of Valdez
with the violation of Section 4 of said
ordinance, In charging and collecting
wharfage on its said dock and was
convicted and fined fifty dollars ($50)
from which conviction an appeal was
taken to this court. A jury was
waived and the case tried before the
Court.
Several questions were raised by
the defendant by motion to set aside
the complaint and by demurrer, both
of which were overruled, in order
that if possible the caBe might be pre
sented on the merits, and all the facts
concerning the situation put in the
record.
First. Defendant denies the right
of plaintiff to enact Ordinance No. 90
as exceeding its authority.
Second. That the Town of Valdez
is without authority to extend its
jurisdiction beyond the exterior boun
darlA of the town.
Third. That said ordinance is il
legal and void, as it is an attempt to
confiscate vested property without
due compensation therefor.
The first of these fpeB to the right
or power of the town council to es
tablish harbor limits beyond its ex
/ / - t. *. ._ _
a case relied upon by plaintiff, it is
said:
“Municipal corporations are cre
ated to aid the state government in
the regulation and administration
of local affairs. They have only
such powers of government as are
expressly granted them, or such as
are necessary to carry into effect
those that are granted. No pow
ers can be implied except such as
are essential to the objects and
purposes of the corporation as cre
ated and established. I Dill. Mun.
Cor. (3d Ed.) Sec. 89, and cases
there cited. To the extent of their
authority they can*blnd the people
and the property subject to their
regulation and governmental con
trol by what they do, but beyond
their corporate powers their acts
are of no, effect. * * * No matter
how much authority there may be
in the legislature to grant a partic
ular power, if the grant has not
been made the city cannot act un
der it. Bennett v. Denison, 145 U.
S. 135, 12 Sup. Ct. 819, 36 L. Ed.
652; Hill vs. Memphis. 134 U. S.
198, 10 Sup. Ct. 562, 33 L. Ed
887.”
See also McQuillan Municipal Cor
porations, Sec. 353, where it is said:
"Any ambiguity or doubt arising
out of the terms employed in the
grant of power must be resolved
against the corporation and in fav
or of the public.”
The only powers conferred upon
municipalities in Alaska referring to
the subject in controversy are found
in Section 627, Compiled Laws of
Alaska, which provides: That the
said Common Council shall have and
exercise the following powers:
' “Fourth-—To provide for the lo
location, construction and main
tainance of the necessary streets,
alleys, crossings, sidewalks, sewers
and wharves. * * *
Sixth. To provide for fire pro
tection, water supply, lights, wharf
age, public health, and police pro
tection. * * * ”
Upon the construction generally
given such powers, it is at least a
matter of grave doubt whether a
town council in Alaska has any ex
tra-territorial authority, and my at
tention has not been called to a case
in point on this question, nor as to
the right to establish harbor limits,
outside the territorial limits, except
where that power is express.y confer
red by legislative enactment.
But upon the merits ol the case,
what is the situation? The plaintiff
makes no concealment of th3 purpose
it has, viz: that of obtaining revenue
for the town from wharfage receipts;
at least this is the reasons given ny
several of the councilmen who passed
this ordinance.
In 1902, when defendant’s wharf
and dock were constructed, the fol
lowing section designates the powers
in relation to the subject, to-wit:
Section 201 of the Civil Code of Alas
ka (Carter’s Code, p. 394)—The
Council shall have the following pow
ers:
“Fourth. By ordinance to pro
vide for necessary street improve
ments, tire protection, water sup
ply, lights, wharfage, sewerage * ’’
While this statute was in effect,
and early in the year 1902, the wharf
of the defendant was constructed to
lill a pressing need of the town; it
was impossible to build up a town
and have to transport freight and
passengers over the intervening 1500
reet or more of mud flats between
deep water and upland. There is no
evidence that the town at this time
had funds with which to build a
wharf; and such was indeed the case.
The very few people comprising the
little town or settlement were willing
to go to any length in order to se
cure a wharf, and a public subscrip
tion was started, many subscribing
who could not and did not pay any
thing, and a few hundred dollars was
raised to help out the work, which
at that time was a very doubtful in
vestment.
Between the years 1904 and 1910 ]
another dock, at the foot of Keystone
Avenue was operated by authority
of the Town Council, and competition
thereupon ensued, in 1910 the Town
Council , purchased said Keystone
Dock with a view to competing with
the dock of defendant company,
which may have been a very laudable
purpose, and no doubt has resulted
in cheapening the price of coal to the
consumers; probably more than
enough so to pay for the purchase by
the Town of said dock. There is no
evidence in this case from which it
can be determined why the steamers
do not land at the dock owned by the
town.
The very evident purpose of this
proceeding and passage of said ordi
nance is, as some of the witnesses
have expressed it, “To put the defen
dant out of business."
Now the power and authority of
any governmental body, whether mu
nicipality, county, state or nation,
cannot be so constructed as to enable
it to deprive any person of his prop
erty, without just compensation.
Plaintiff contends that the defen
dant has no right whatever, and that
the town council has no power to
grant a franchise to enable any per
son or company to construct or main
tain a wharf or dock. If this be true,
it is probably also true that the de
fendant cannot have any greater
rights without any franchise from
the Town Council than it would have
with one.
Plaintiff relies upon the case of
Conradt vs. Miller, 2 Alaska, supra.
In that case, on page 440, the Court,
Hon. James Wickersham, Judge, says:
“In the absence of special affirm
ative legislation, an incorporated
town in Alaska has no authority to
grant a franchise to an individual
or corporation which will authorize
the<%rantee to take exclusive pos
session in perpetuity of a portion
of the street and river bank of a
navigable river, and erect wharves
and various warehouses thereon,
and charge the public wharfage or
toll for using it. Illinois Ry. Co.
vs. St. Louis, 2 Dill. 70, 12 Fed.
Cas. 1199, No. 7,007.”
Now let us consider this case a lit
tle: In the first place it was an ac
tion by abutting owners to prevent
the obstruction of a highway in front
of their premises on the bank of the
Tanana River. Ttye council attempt
ed to grant an exclusive and perpet
ual franchise to occupy the street and
extend the structure In plaintiff’s lot.
SPECIALISTS
HE man who Wants the best legal advice
goes to the best lawyer he can find—a
specialist in the particular fond of advice
needed. The man who wants the best in cloth
♦ %
ing goes to a clothing specialist—-a firm that
has made it their business to sell mens clothing
of a superior quality. The keynote of our
leadership as clothiers is the High Quality and
Matchless Character of our goods.
Hart Scaffner & Marx suits
From $25.00 up.
Style-Plus clothes
$17.00 the world over. ^
S. BLUM & CO., Inc.
GOOD GOODS
er is complaining, but on the con
trary every owner of land abutting
defendant’s dock approach testifies
that instead of its beftig an obstruc
tion it is a great benefit. The Court
says, at the bottom of page 438 (aft
er citing the statute, sub-subdivision
6 of Section 627, Comp. Laws of
Alaska, supra) —
“Power to provide for the loca
tion construction, and maintenance
of the necessary wharves imposes
upon the council a public duty as
well as a power to perform it.
When it shall appear necessary to
the council to provide these useful
aids to commerce, it becomes their
official duty to locate and deter
mine where the wharf shall be
built, to construct or build it, and
thereafter to maintain it and keep
it in repair.”
Council for plaintiff argues that
the Town Council must exercise these
nowers; but let us see. How many
towns in Alaska have constructed or
own their own water system, or light
ing system, or sewerage system? It
would no doubt be a most excellent
thing if they did; no one can deny
that. In this day and age any one
who does not favor public ownership
of public utilities, is sadly behind the
spirit of the times. But this is no
reason for taking one’s property
away from him without compensa
tion. What reason is there for say
ing that a town in Alaska cannot
grant a franchise or license, as it may
be called, reasonable in its terms,
not exclusive in its character, and for
a reasonable time, with provision for
the town acquiring the property ulti
mately at a reasonable time, wdh
provisions for the town acquiring the
nroperty ultimately at a reasonable
valuation, for electric lighting, for
water system, for sewerage system?
And if for these why not for wharf
age? Do the people coming togeth
er in a country of great inconvenience
at the best, poor and struggling to
build up a town, where they hope to
live in peace, establishing schools and
educate their children, have to fore
go the modern conveniences' of elec
tric lighting, water and sewerage sys
tem, because the lay says the Council
shall “provide” these things, and
there is absolutely no money with
which to provide them? Are the
neode bound by such a construction?
Is the law made for the people or are
the people made for the law?
If they can make reasonable and
necessary contracts for these things,
are they still compelled to wade in
mud up to their knees and suffer the
expense, difficulty and delay of having
their freight hauled through almost
impassable mud and water for a
third of a mile, because the town has
no funds with which to build a
wharf?
It Is not a question of a perpetual
and exclusive franchise; of course the
defendant has no such thing, and I
would be the last one who would ■wish
to see such a privilege given away if
it were possible to do so. It would
be a great calamity if the defendant
or any one else could acquire the
right to have such a perpetual or ex
clusive franchise and without any
power of control or regulation as to
rates.
Suppose, however, that in the first
days of an Alaskan town, some one
had put in an electric light system
or water system, or sewerage system,
'with or without the sanction of the
town council; suppose such system
had been used by every one, includ
ing the town itself as an entity, for
over thirteen years, had paid' taxes
and Increased its service so that it
had a property worth forty or fifty
thousand dollars. Would it be fair
or equitable for the town to then
construct or acquire by purchase an
other such system and pass an ordt
'rviutixuiedL on . Page Three.)
DR. H. COCKERILLE
Graduate National University.
Washington, D. C.
DENTIST
Fourteen Years in Valdez.
PHONE 110
Office Rooms in Whaling Building
DR. GERMAN
p„o,e ,» THE DENTIST
Office rooms over Owl Drug Store. Of
fice hours 9 a. m. to 6 p. m., 7 to 9
p. m. Sunday by appointment.
All Work Guaranteed.
E. C. DALTON, M. D.
PHYSICIAN AND SURGEON
Phone 42
Alaska Avenue Valdez, Alaska
DONOHOE & DIMOND
ATTORNEY S-AT-LA W
Office OppoMite Court House
Phone 34 VALDEZ* ALASKA
JOHN LYONS E. E. HITCH IE
LYONS & RITCHIE
ATTORN BY S-AT-LA W
Office* In Whaling: Building;
Phone 101 VALDEZ* ALASKA
VALDEZ LODGE
Np 168
Free and Accepted Ma«tona.
Regular Communications first Wed
nesday in each month in McKinley
Hall. Visitors always welcome.
A. E. GRIGSBY. W. M.
ED. WOOD. Secretary.
Red Cross Hospital
Keystone end Hobart Sts.
OPEN TO ALL PHYSICIANS.
Private Rooms for Patients.
Pbone 144 MRS. C. H WILCOX. Matron
Somebody
With Money
always has been found to
“back” a good plan, a good
idea, a good business ven
ture or a good mining pros
pect ; otherwise a good many
of today’s successful busi
ness enterprises would still
be mere dreams.
Advertising has brought
about a majority of the in
troductions of the man with
the idea, the man with a
prospect, or business to the
man with the dollar.
ADVERTISE IN THE
PROSPECTOR FOR RE
SULTS.
LM Shamrock
CAPT. TIM MARCUM
Sails for Port Wells, Portage
Bay, Granite Mine, Saturday
at 9:00 a. m., from the Val
dez Dock Company’s Dock.
For Ellamar, Land lock Bay.
and Fidalgo, every Wednes
day, 9:00 a. m., from Val
dez Dock Company’s Dock.
For Rates, Apply on Boat.
The Best Place in Valder. to
Stop at is the
t* H 1
Warm, Light Rooms-.The House of Camion
RATES REASONABLE
BATH ROOM Special Rates hr the MowtA
v
PHONE 133 MRS STRING. Pros
Valdez Miners Union No. 188
Western Federation of Miners
ROBERT SHAFFER. President.
Granite Mine
CUAS. McCALI.UM, Secretary,
_Valder.Ala.ka,
Dougherty & Ferguson
GENERAL
Merchandise
The best groceries received
on every boat.
Fresh vegetables, fruits, and
nuts.
A. M. DIERINGER
Valdez Transfer
Company
./ 4
Office on Alaska Avenue, in
. Ceorge C. Treat Building
Telephone No. 60
General Trucking and Freighting
to all Interior Points.
LIVERY and FEED STABLE.
STORAGE,
Teaming of All Kinds
Positively No Coal Delivered Un
less Paid for in Advance