The Alaska daily empire., 1917-03-21

 In the case Of HuideEoper V. Hodley,
 '',rho reason why the Governor
 cannot be cocrccd by m0ndOmus is that he needs no such coercion; he is COnclusiyCly presumed Co be will
 ing to perform all his executive duties, His constitutional obligation is to sec that the laws of the state shall be faithfully executed and his oath of office requires him to sup- port the Constitution and dcmcan himself faithfully in office. The very reasons which exempt him from liability to the writ or man damus orc the case which insure the performance Of his duty as a
 member of the Board"
 Not only is this theoretically true, but the Answer in this ease shows that it ls actually SO. IL is not meant to draw any invldiOus distinction be- tween the disposition of the Governor and that of the other members of the Board for in this regard their answer Is practically the same. I take lt Tor to do their duty lf only their duty Is made plain. cludes with the following:
 Accordingly we think tho writ Of
 mHndamus may lawfully be awarded
 Co secure action by statutory quor-
 um of the board in this case when
 circumstances are such that the
 entire membership cannot be reach
 d77 Fed. 13)
 It Is true that decision uses shc words statutory quorum" but the law is well settled that in performing public duties a majority of a Board is ta lawful quor- um and may act for the Board, unless the State requires unauimity
 g. CyC. l0S7, note 43, and cases cited.
 A third point raised by MT. Rust gard Is that mNndamus will not He h. H.4 ,R1Ns hVF before the House Of Representatives. This contention fails Co appreciate the true object and purpose or the acton.
 The object of this proceeding la 10 obtain the certificate of clccuon-that is, prima faCic evidence. IL is not Co put one man out and put the plaintiff in-A mnndamuS will not lie for such purposes as that for that is for the House or Representatives 10 determlne; but no other proceEs or proceeding can give the specific relief which plaintiff claims Co be entitled to here.
 "Thc remedy which will suspend
 mandamus must be one which IS
 ''CompctCnt Go afford relief upon the
 very subject matter to question,
 and which Is equally convenient. beneficial and cffCCtu1l"
 (2S CyC. l7l-2)
 In the case of O'Ferrcll V. Colby, li9, ,hc Court said:
 Another position urged by the de- fcnsc is that, as by the constitu- ton the Senate ig made the judge
 of the election and eligibility Of it's
 members. no other tribunal can or
 ought to take Jurisdiction of this
 case. This position. we think, Is
 sufficiently answered by the fact that this is not a proceeding tO try
 the right of any party Co tho office
 of Senator. but simply Co determine
 whether the plaintiffs are entitled,
 ut the hands Of the defendant, Q certificates Of election to that office,
 Nor can our decision in the least affect tEc question of the election of either Of the candidates. That
 question Can be definitely settled by the Senate alone The aid of this
 Court is sought Co prevent the con sequences Ot @ usurp1tlon Of author ity on the part Of the board Of
 c8nvasscrs, and Co compel the de-
 fcndant Co do his duty. All that we
 can do is to arm the parties en-
 titled with the credentials ncces-
 Sarv tD enable them properly to as-
 Scrt their rights before the proper tribunal Whether they, or either
 of them, were legally elected. Is not a question here, One candidate may
 hc entitled to a certificate of clcc-
 ton. while his opponent may have
 a clear right Co the office"
 Tn tho cpsc ot People V. Hillard, % ,ll 4l3, the Court say (oplni3u by
 'Thoush the House of Rcproscn-
 tativcs Is thc solo and cXlusivc
 judge of tho qualifications of ita
 members this application has no
 refcrcnce. whatever 10 the point of
 its qualifications. It's sole purpose
 is t1 procure the requisite evidence.
 iO present to that body, of primI
 facic right Co a seat in it. indC-
 pendent wholly Of the question Of
 qualification. It is clear then. the
 appropriate remedy Is not with the
 House of Representatives. The on-
 ly remedy the rclator hos-thc only
 means by which he can obtain
 evidence of the right claimcd-iS
 hy this compulsory writ of man
 damus"
 See also State v Board of Com
 missioncrs. 3l r. k. S70 (Mont)
 Co same effect.
 A fourth point mentioned by Mir Rustgard is that iC the returns of the election board Co the Convnssng Board are insufficient. mandamus should be brought against the election officers for fuller returns. But even so mol maNadamus was brought by the Can wasting Board or any one else against the election board. This Court, can not, Of It's own accord, bring man damus; the Canvassing Board took the returns as they were, and the question which confronts this Court here is what did those returns Show2-nOt what they might have shown if amend cd It k shown at another place in this N'NiSAvN NtNN Nlt pu"tI ol CpNhluNI- ing new or amended returns i8 mat ter of statute. Another point advances Is that ns the writ of mandamus is a discretionary writ the Court ought not Co issue it in this case IL is true that the isasuancc of a writ Of mandamuS ls largely discrction- nry with the Court. but it would be m abuse of discretion to deny the writ in n proper case,
 Atchison V. Commissioners, l2 Kansas, D. l27.
 New v Vncgcn. 7l x. W. SSO.
 Another point Is that the Board. | in. has Issued certificates of election l for candidates for the House of Repre- ! scntativcs of Alaska, and that for it ! to refuse to count said precincts in , the matter Of the election of a Dele ' gate 10 Congress would be inconsistent i and that for the Court to CDmpcl them | to do SO would be Co invite polit- | sued to some Of their numbers to ! whom the alleged erroneous returns are favorable and then have the rec turns eliminated as to those tO whom they arc found unfavOrabc" The an- swcr readily suggests itself and it is tho Board has or has not done in the case Of other candidates, nor what the political cOnfrcrcs'' or political oppO- NCptS" of any Of the interested parties may or may not have done or do or do not Intend to do: for such things arc not pleaded and are not before the Court-nor is it apparent how much things could be material 1T pleaded.
 If the Board has taken any such action as that the possibility ot which Is suggested by Mir Rustg0rd it is likely that the persons against whom