The Alaska daily empire., 1917-03-21

The decision rendered yesterday in the United States District Court by Judge Robert w. Jennings, in the mandamus proceedings over the election of Delegate from Alaska, is given in full by The Empire to- day owing to the comprehensive re- view, citations, and strong nature of the decision. The full decision is as follows:
 STATEMENT
 This is a proceeding by mondomus to compel the Canyassing Board, consist ing of J. F. A. Strong, (Governor). 1 Charles E. Davidson. Surveyor -GeneraD and John F. PuEh, (Collcctor Of Gus toms), Of the Dlsulct Of Alaska. to re- l jCct-i, c.--nOt count the votes or al- leGcd votes from certain precincts for the office og Delegate to Congress from ! Alaska, and Co Issue Co Charles A. Sul- @er certificate Of election to said or- flee.
 The petition for the alternative writ alleges that the returns from the pre- Ciucts ot CroSEiung, Deering, Mama | NushaEak. Utlca and Bonnineld were not entitled Co be Canv0sscd or counted because said returns plainly show that nu official ballots were used and do not show any reason for the non-usc of of- Icial ballots; that thc returns from the precinct of Vault were not entitled tO be c0nvassed or counted because not properly authenticated. The petition fur thcr ayers that if the above mentioned precincts arc not counted Charles A. SulZer will plainly appear Co be entitled Co the certificate Of election Co said Ot- flee instead of James WiCkcTshQm, Co whom the CanvaSsinS Board was about Co issue the certificate.
 On the filing and presentation Ot said petition the alternative writ was duly issued and duly served.
 All the members of the COnV0SsinE Board duly answered said writ, but all did not join in one answer. Collector Pugh filed his answer admitting all the allegations of the petition and writ, and expressing his entire willingness to do the things commanded in the writ but stating that as he was a minority mem Der Of said Board he was ''powcrlcss In the premises Governor Strong and Surveyor General Davidson joined in one answer the allegations Of which are sufficiently stated at q later point in this decision
 All tho defendants appeared without counsel Mr. Davidson, beside filing his joint answer aforesaid, appeared in per- ] son.
 The plaintiff moved for Judgment on the pleadlnEs, but the Court refused to consider the matter on such action. deCminE it better Co tallc it up on de- .F4a tiff dcmurrCd ore tCnus Co the answers. The Court advised the Canvagslng Board 70 secure counsel whercupOn Mir Day. idSon made the following statement: your Honor we have no inter- est in it any more than we would like the law point decided and we
 have made our answer tho best we could, and We have no other Inter
 est any more than to obey the or- 2 ders or the Court, whatever they may be-"
 The Court thcreupon inquired if Judge Wtckersham was represented at this negative stated that it would hear the oral argument Of plaintiff in favor ol the Demurrer and would be glad Go consider any argument that any friend oi Judge Wickcrsham might wish tc make or any brief he might choose to lilo at that time or at a later date
 lt iS Co be regretted that Judge WickerSham has not intcrvencd here in-de IS proper party. but problb- ly not necessary party. At present as th" Court is Informed, he is absent from the Territory and the date of his return hereto is problcmatcal Ow- inS to the near approach of the extra Session Of Congress a situation is pre- scented nccessItatinE action by the Court without too long delay. I believe how ever, that his interests have been look Cd after by Mir. Rustgrad. who has Tiled a brief herein In which althOiIf-h
 
 thority from Judge WiCkersham. thc points against the demurrer are pre- scented with great force and clelrncss: and ] cannot see how Judge Wicker sham's interests could be any better presented were he a formal party and here protesting against the sustain Ing Of the demurrer.
 The people. too. Cnn be said Co be interested in the matter. This is true, however. in a limited sense only. It Is not true in the sense thnt the man. ! dlrnuS if sustained. would. could or might result in the seating or unseat- ! lnE or one who was not or who was | the peoples ChoiCe-That question is ! not involved here as this is not a pro- : cecdinG to settle q contested election 1 Their interests, whatever their nature 1 would naturally be looked after by the 1 Attorney General. The Territory is n ] formal party plaintiff. although that IS not necessary under our Code. The ! Attorney General was present in Court | al the argument of the demurrer The [ Court would willingly have considered 1 anything he might have said on the subject. It Is a fair presumption that ! f he had thought that the demurrer was not well taken and that the in- 1 tercsts Of the people were about Co be maincd silent
 ! The Court will say. however. that in deciding the demurrer. it has congid- | cred all possible aspects of the case. s''N 'H'A.'' as n 'lll persons however ln- 1 torCstcd were formal parties
 The points raised by Mr Rustgard relate mostly Co tho propricty Of the remedy. and will be advcrtcd Co first. | because they are of ntUrc that makes thoir primal consideration the most log lcal way in which to approach the questions involved.
 The first point raised by him is to call attention Co the inartifiClalnegs Of ! Inc pleadingS The point is well taken out nevertheless there is enough in the Dlc1dinES and supul1tionS to make a case In Court and Co call for action by the Court, and in view of the mat terS and things set up in the answers Of the Canvsssing Board and the atti- Jude CT the ClnvaSsinc Board. aS dis- closed by said answers and by the statement Of Mir. Davidson, the Court cannot do otherwise than decide the question involved; and this it will do without too strict m adherence Co es- taolShed forms Of prOCcduTe;- cspcc- ially in view of the fact that the PrcSi- dent has called an extra session of Congress for an early date and it is important that the person entitled to the certificate of election should pre- sent himself on that date, and that me contest of election. if any such there shall be. before the House of Representatives may be initiated and concluded at the earliest possible mos l ment, to the end that Alaska may bc | represented by her duly chosen repre- ! sentative. whoever that may be-
 A second point raised by Mir Rust l gard Is that manGlmuS will not lie to compel the Governor to do any act. | either ministerial or discretionary. Near ! ly all the authorities as to this point ! fn ma F11ye H...