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ll lathers freely and cleanses thoroughly, without Injury to
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§ TRANSFER AND FREI8HTIN6
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DISTRICT COURT DECIDES
ELECTION CORTROVERSY
In a lengthy decision rendered in
the District Court this morning. Judge
Holrtheimer denied the application of
Attorney Fred Harrison for a writ
of mandamus to compel the city coun
cil canvassing board to count the dis
puted ballot cast by C. h. liovegren
at the recent city election. Qity At
torney O. D. Cochran represented the
city during the court proceedings.
The complete text of the court’s de
cision is given below. The decision
removes the legal bar to installation
of the newly elected mayor, council |
members and other city officers and;
they will phoimbly be inducted into
office at Monday night's meeting of
the Council. The decision in the man - 1
damns proceeding is as follows.
.’835. .Memo Opinion.
In the District Court for the Territory
of Alaska. tferond Division.
Territory Ex ItH Fred Harrison.
E. D. Holt, as Mayor of tlie City of
j th- City of Nome, and Edward X\ Tar
jOriillth. nipmlws of said Common
titi >ner far a writ of ntandate in tho
ixij-sing- upon any Irregularities of the
elec tion boar<I. canvasping board or
othoi-s in tlie municipal ejection, which
brought about the demand for the writ
of mandate, nor does be pans upon the
right or legality of the Igwegren vote,
nor must it he considered or upderstood
in anything «tvid in this memo opinion
that any of tlie aforesaid acts would in
any way effect its decision in another
j The demurrer, or a renewnl of tho
same at the close of the evidence strik
ing at the sufflcifincy of the writ may
J ha.v e a great deal of merit in it. still
| there is sufficient for the court to act
upon for all purposes in this caw*.
While the court is of the opinion that
j the better practice would be to set
|forth in the writ the same facts as are
I set out in the petition, and thus avoid
[many complications, such as have
I arisen in this ease, for instance.
J This case has been a very complex
one. and the Court has not been great
ly aided by the pleadings and evidence.
|l have refused to strike certain allega
tions in the. pleadings, and admitted
certain evidence, which would have
has done so, not for the purpose of Set
Mil.;' questions that would more pro
pel !y come tip in a contested case, or
to.- ing the legality of the Lovegron
voi ; tills of necessity must be so, for
he purpose of assisting the Court to
.110.0 accurately get at the true facts
of affairs, ANI) AS TO WHAT WERE
THE RETURNS.
With this in view, and all supea'flu
1 *u matters eliminated the real issue
j .« . sclosed. After listening to all the
evidence, the arguments of respective
•oimsel, and the ponding of the autfhor
j .ti< ; as cited by both parties, I find,
jtluit there are but two points left for
turns submitted to tho canvassing
board; and.. 2nd: What were their
duties? I believe fitom all the authori
ties and arguments advanced both
counsel agree that their duties are
piii ely ministerial, and that they can
not go beyond the returns of the elec
tion board: to do so would bo the ex
I ereise of judicial powers, which under
I the great weight of authority they
I have no right to do This, to my mdnd,
is a good and saiutory law, because
I the men on these boards are laymen,
j inexperienced and not trained in the
law. Elections would be controlled at
I tlie whim or interest of the canvass
ing boards, or their friends, a condi
tion that would be dangerous .and fatal
to the elective franchise, and against
law and justice.
The question in dispute is, WHAT
ARE THE RETURNS. I believe all
the votes, books, certificates, tally
sheets and other papers or envelopes
duly authenticated by the election
board and returned to the canvassing
board .are the returns, and it is their
duty to canvads the same, and by can
vass I mean scrutinize and tabulate
them, and make their findings in ac
cordance with, the returns of the elec
tion board, unless there is a plain,
unquestioned fraud’on their face, or a
mistake or error in the tabulation.
That Is all their duty—THEIR SOLE
DITTY—and anything else would be
the exercise of*a judicial function, and
not within their province. Xow did
they do this? Let us see. They tabu
lated the tally sheets and found no er
ror; they gave Pearson 107, Harrison
108 and Rice 109 votes; they scrutinized'
the certificate, and what did that
show? It showed the sime result, with
this addition, that no ballots w<are de
stroyed. no ballots rejected and one
ballot sealed in an envelope and not
counted. What would be the next
thing naturally for the Board to do?
They turned to the envelope and writ
ten on the envelope were these words:
"Ridlot .received from Clarence L.
J Lovegrnn wealed herein by said Love
E. L. HOLT
GENERAL HARDWARE
GA30LINE TANK8 FOR OIL
■URNER8
TIN 8HOP IN CONNECTION.
Tala phene Main 11
WILL MOVE ACR083 STREET
TO DARLING AND DEAN BUILDING
NO WAR PRICE8 AT HOLT’S
gron, but not opened or ballot counted i
because tho said Lovefren was not
considered entitled to vote;” this was|
Signed by the Inspector and judges.
Now it don’t make any difference to
them who wrote this, or what influ
enced them to sign, if they signed it
became the act of the election officers,
and the canvassing board could not go
into and try out their actions or tho
legality of tho Jnvegren vote, that is
for the courts in another action. All'
the Returns dhoweil the vote had not
bean counted for the reason above
stated. This is not a mistake in tabu
lation, if anything is a mistake in judg
ment, or tho arbitrary or fraudulent
action of tho election judges. The
canvajsstrig board cannot review their
action as they are not a judicial body,
and exorcise no judicial functions. So
you see they canvassed anti scrutinized '
Hue envelope, the vote was not lost, but
accounted for, (preserved If you will)
for any other uction that might be tak-.
on with reference to said election, or
the legality of said vote. Now what
else did the canvassing board do?
They scrutinised the registration anti i
poll >MX>ks: what did they find there? j
It is wife to say. without •successful
contradiction, that they were unable to
tell from such inspection whether the
voter laivegren had voted, and the1
Court is free to confess, from the facts
before the canvassing board, he is in
the same condition or frame of mind.
This, however, does not take in the
evidence received by tlic Court in the I
case, which was taken only for the
purposes heretofore mentioned; this'
evidence was not before the canvassing |
board, and they had no right to take
evidence, they are controlled solely by
the face of t’he return. Such Was the
finding of the canvassing l>oard, as
evidenced by the resolution pa«se<l by
that board at their first meeting—I i
mean the resolution p;ussed without1
any interlineation. The differences In I
the poll and registration books, the
changes in the resolution and the reas
ons given for such differencel-t and ;
changes tho Court will not pass upon
in this action.
Taking the returns before them, all
the canvassing board could do. how
ever. was to find that the election j
I»on id had refused to count the vote,
for some reason of their own, whether
voted or not voted, and they had no j
rigid to speculate on that, or refuse j
the judgment of the election board.
For the purpose of this hearing the j
Court holds that it does not make any
difference whether the vote was cast,
or not, and for Hdmo reason or other'. .
whether rightfully or wrongfully, the
election lioord refused to count it, it
thereby become a rejected vote, no i
matter what words wore used in the I
certificate, that action cannot be re- !
viewed by tine Court in a; mandamus i
proceeding, and if the Court cannot ,
review it, certainly the canvassing j
board have no such power. To do ]
otherwise would be to allow them to 1
exercise a judiciul function, which is
beyond their power as ministerial of
To briefly summarize: The slat of
this action is to invoke the power of
the Court in a mandamus proceeding
to compel the canvassing board to
perform a duty which it is claimed they
failed to do. It Is conceded by both
parties to the action that the duties of
the canvassing board are purely minis
terial. If they have, failed to perform
any such ministerial duty mandamus
will lie to compel them to do so. If
they have not failed in their per
formance of such ministerial duties
mandamus will not lie to compel them
to do anything in addition to what
they have done.
The facts in this case disclose that
the election board passed up to the
canvatssing board with their return one
ballot which they failed or refused to
count, with their reasons therefore
endorsed on the mnveiope containing
the ballot.
The reason assigned for not count
ing the )>allot may be valid or invalid,
or their action in refusing to count the
ballot may have been puivif arbitrary,
the reason assigned for not counting
the ballot is entirely immaterial for the
purpose of this action. If -their refural
to count the ballot was wrongful, the
legal remedy is by another soil of
action. The question presented here
ifc. was it a psu*t of the ministerial
duties of the canvassing board to have
counted that ballot <in canvassing the
returns sent up to them. This the
petitioner asks to have done by an
order of the Count.
The Court has reached the conclu
sion from the great preponderance of
the authority on the subject, that it
was not a pant of the ministerial du
ties of the canvassing board to have
counted that ballot, regardless of any
reasons assigned by the election board
for rejecting -it. The authorities ore
uniform In 'holding that n c-anvasaing
boo id connot revise the judgment of
tlw election board in .rejecting a ballot,
and thus imss upon the qualifications
of a voter for the second time. It fol
lows that if the canvassing board,
could not lawfully do so the Court is
|K>werletas to command tnem to do so
in a mandamus proceeding.
The aggrieved party is not without
a remedy in case the election board
acts wrongfully and in violation of the
rights of voters or candidates, or is
mistaken In Its Judgment in rejecting
a ballot. The validity of the whole
proceeding may be tried out in an ac
tion for that purpose, or the aggrieved
party, if unlawfully deprived of his
vote, has his remedy in a personal
suit for damages, but it cannot be
reached by ;ui action in mandamus.
The peremptory writ is hereby dc
IXrne In open Court this 15th day of
"Win. A. HOLZHEIMER
District Judge.
CHAMBER OF COM. LEARNS CHARACTER
OF NEW ALASKA ADMINISTRATION BILL
The plan for Alaska administrative
control by a resident board appointed
by the government which was suggest
ed by former Secretary of the Interior
Franklin K. I-ane shortly before his
retirement from office, has been em
bodied in a House bill prepared by
Representative Curry of California.
Tho following details of the measure
p.ro contained in a telegram to the
Chamber of Corntmei-ce, which, by the
way, hits changed its name to the
"Northwestern Alaska Chamber of
Commerce", from J. L. McPherson,
manager of the A1a!aka Bureau of the
Seattle Chamber of Commerce. The
message says:
"Curry bill provides for administra
tion (of) national property and inter
eats in Alaska by (a) board of three,
who shall reside in Alaska but have
no control over political or intomnl af
fair* of (the) territory. Not more than
two members of board from same
political party.
•‘We believe such local administra
tion essential to efficient administm
tion of constructive policy.
“Kindly cable your views."
Signed McPherson.
Further details are provided in a
second messagp from Mr. Mcrhcrson
in answer to a reply to his first mes
sage by the local body in which he is
asked as to the possible result* of the
bill with respect to the activities of
the various departmental bureau'] in
Alaska. To further clarify the ciuea
t*tn the Chamber message asks if the
passage of the Curry bill woul 1 pre
clude assistance of the> Biological Sur
vey to the reindeer industry or the op
eration of other technical bureau’s in
Ala*i;&n affairs. The message Also
ALASKA MINES CO.
TO ENLARGE ACTIVITIES
Alorte Howell, winter manager of the
Alaska Mines Corporation has received
telegraphic instructions from the Out*
side to commence preparations for
summer activities by overhauling the
Bourbon and Flat Creek dredges and
opening the Wild Goose ditch system
now under lease to the Alaska Co. A
number of men are already at work
on the initial pnetparations.
'hie t derations this year .vil' he un
der the directions of Capt Rockwell,
who spent some time in Nome last
season and has now taken over the po
sition held by Rod Sargent in 1919.
In his advices to Mr Poufcll. Capt.
Rockwell Intimates that the operating
program for the coming signmer is of
considerably increased magnitude ,«*
compared to earlier years, indicating
that the company is well satisfied with
the results of the extensive investiga
tion work conducted last year and in
tends to proceed with development on
i greatly enlarged scale. The com
pany has had several men employed
throughout practically the entire win
ter placing a new cement floor in the
dg leflectrlc power plant on Bourbon
creek and the plant will be in the best
of shape to fill the power requirements
when the mining season opens
LAST MAIL ARRIVES
A dispatch of mail from the Stxftes
and interior approximating 700 pounds
in weight arrived Wednesday morning
The consignment was the last that will
come over the winter trail from points
outside the district. No first class
matter from the States was included,
the Outside portion being confined to
second class. A large portion of the
shipment was mode up of mail from
the interioj* and southeastern sections
of the territory.
•AfcK FROM TRIP
TO PORT CLARENCE
-L.
Chas Bice and TOmer Heed returned
Wednesday from a trip to the Port
Clarence (section, commencing last!
week. They report excellent traveling!
conditions throughout the journey, I
which was anode In connection with
the recent sale of the 8unse* Creek j
KOBUK MURDERER E8CAPE8
FROM PENITENTIARY
Victor Ucynaud, a French Canadian
who was convicted In the District
Court in 1912 far the munler of u man
nailed Sutxe near Klana. Ln 1911, es
caped from the federal penitentiary at
Leuven worth, Kansas, during the tail
of 1919 and at last accounts was »« it
at large with a reward ottered for hi.«
capture.
The murder for which Meyimud wan
.cspocetlble was committed for the pur
pose of robbing his victim of ramo
hundred and fifty or sixty dollars
which Sutxe was known to have on
his person and was one of the most
atrocious crimes in the history of this
dcctlon. liy inducing Sutxe to go on a
rabbit hunt, Meyn&ud succeeded in
luring him into the hills a short dis
tance fixgn Klana and deliberately shot
Setae in the back of the head with a
small cullbftr rifle. After relieving
his victim of the money M'cynaud left
the body lying in the snow atnd re
turned to his cabin. The body of the
murdered man was found which was
still warn by two prospectors who hap
pened to nee him lylug in the snow
while passing along a neighboring hill
side. Suspicion fell on Meynaud and
the murderer was arrested March 2;»
1911 and subquently brought to Nome.
Ow.'ng to the dastardly character of his
crime the attorneys then In Nome were
reluctant to defend him and it was not
until considerable persuasion had been
hrough to bene that Attorney's O. D.
Cochran and W. A. Gilmore under
took the defense. As a result of their
efforts Meynaud was induced to plead
guilty to second degree murder and
was saved from the hanging he «o
(richly deserved, lie was sentenced by
District Judge C. D. Murum to serve
forty years in the penitentiary on May
9. 1912 and was later encarcerated In
the.lponitenUar.Vat McNeil’s Island.
Washington. A year later lie wss
transferred to 1«eavenworth. He es
caped from the latter institution No
vember 1. 1918. after seven years con
finement.
ARE YOU A ROOSTER ?
! How do you Ilk* the Weekly Nug
*e»? If it suits you. pass It on or
mat!' It "to somebody who might be
come interested in this part of Aladka.
The mineral in here but It takes
men an<i capital to get It out. In
terest your best friends by subscrib
ing to the paper for them. We will
mafl it anywhere for $1.00 per month
au.'.orneed that in cu': lb* Mil pro
vid»d i'or increased activity and as
ai:.'o- ce of the bureau'* in «s*> - opera', lo.i
with the proposed administrative
board, the measure would be approv
ed. . The Chamber also said that be
cause of the vastness of the territory
it would prefer a larger committee on
which each division would have equal
representation wKh offices In each di
vision. in reply Mr. McPherson said:
"(The) Development Board will take
over the administration of the rein
deer Industry but undoubtedly (will)
be empowered 1* secure technical aid
from all bureau's. Exhaustive study
by committee's- will probably require
(a) year before action (is) taken on
(the) bill. You will have lime to sub
mit your views in full after recsdpt
of bill, (copy of which am) forward
hi* by first boat."
CHAMBER OF COMMERCE
OUTLINES DEVELOPMENT
NEEDS OF PENINSULA
Follow Inf to the Hat of devejounent
needs of the Seward Patbwuls dis
trict as outlined In a tuiefiem to J_
£" yePIWg. of the Atoaka Bureau
by the local Chamber of Contnnv*.
1 Iteduced freight rate* and regular
service water transportation through
government ownership, subsidy or
otherwise.
2 Cheaper fuel, government dtatrt
butlon of coal and fuel all.
* Premium an vfcMu (old.
.4. Aide to nnvicattan by pbomm
<* Hfhtt and buoya at hn normal
Mnm: anaunaneeit of a scout bant to
Coaat^Ouard for relief of maifaan In
f EaUbliabment of .nanie..! wire
jeeestatloi* at Taller, Waite and JCot
* loc reused appropriation for
roods and aeiectal conatruotlan of roads
biaectin* Smart "irtbian*- '
* Approprlattona for the eetab
Ifadimant of todtadrlal soboola for the
a An exploration aianty of
Ashlar amafc of Bering Son.
The Chamber also
Puilsatlon of n noofl
act in the a
committee tor
quarters In ‘ ‘
Now in the time to do It!
WHAT?
Order your Job printing wants
before the naanlag of
Narlgatlon