Q3S& ^T K I ^ fiX CONTESTED-ELECTION CASE OF JAMES WICKERSHAM V. CHARLES A. SULZER FROM THE TERRITORY OF ALASKA "^2) # WASHINGTON GOVERNMENT PRINTING OFFICE 1917 CONTESTED-ELECTION CASE OF JAMES WICKERSHAM V. CHARLES A. SULZER FROM THE TERRITORY OF ALASKA T:) WASHINGTON 60VERXMEXT PRINTING OFFICE 1917 D. of D. NOV 15 191/ r\ CONTESTED-ELECTION CASE JAMES WICKERSHAM V. CHARLES A. SULZER, FEOM THE TERKITOKY OF ALASKA. NOTICE OF CONTEST. To Hon. Charles A, Sulzek: Sir : Please take notice that it is my intention to and I sliall contest your election and claim to the office of Delegate from Alaska in the House of Repre- sentatives of the United States for the Sixty-fifth Congress from the Territory of Alaska, by virtue of the election held in said Territory on the 7th day of November, A. D. 1916. And also take notice that annexed hereto is a petition addressed to the said House of Representatives specifying particularly the grounds upon which I rely in making said contest. •Dated Washington, D. C, this 10th day of April, 1917. James Wickeesham, Contestant. PETITION OF CONTESTANT. To the House of Representatives of the United States, Sixty-fifth Congress, first session. Comes now James Wickersham, contestant, and particularly specifies the fol- lowing grounds upon which he relies in the contest herein against Charles A. Sulzer, contestee : That at all the times mentioned in this petition and ever since the passage and approval of the act of Congress entitled "An act providing for the election of a Delegate to the House of Representatives from the Territory of Alaska," approved May 7, 1906 (34 Stat. L., 169), it was and is the law of the United States that the people of the Territory of Alaska shall be represented by a Dele- gate in the House of Representatives of the United States, chosen by the people thereof in the manner and at the time prescribed by the laws of the United States, and who shall be known as the Delegate from Alaska. n. That at the general election held pursuant to the statutes of the United States in the Territory of Alaska on the 7th day of November, 1916, this con- testant was a duly nominated candidate for the said office of Delegate from Alaska ; that upon the date of said election this contestant was and for more than seven years prior thereto had been and he now is a native-born citizen of the United States, and was then and is now an inhabitant in and a qualified 4 WICKEESHAM VS. SULZER. voter of the District of Alaska, and was not less than 25 years of age, and was then of the age of 59 years, and was a resident in the town of Fairbanks, in said Territory of Alaska. III. That at the said general election so held in said Territory on said 7th day of November, 1916, there were three candidates for the said office of Delegate from Alaska- — (1) your petitioner, James Wickersham, contestant; (2) Charles. A. Sulzer, contestee; and (3) Lena Morrow Lewis. IV. That at the said election so held in said Territory of Alaska on said 7th day of November, 1916, this petitioner, James Wickersham, contestant, received the greatest number of votes cast for any person or candidate for the office of Delegate from Alaska, and thereby was and now is the duly qualified and' elected Delegate to Congress from said Territory of Alaska, and was thereupon and now is entitled under the law to a seat as Delegate from Alaska in the House of Representatives, in the Congress of the United States, in the Sixty- fifth Congress, now in session. That at the said election so held in said Territory of Alaska on said 7th day of November, 1916, on the face of the returns of said election as canvassed by the canvassing board for the Territory of Alaska authorized and provided by tile twelfth section of the aforementioned act of Congress so approved May 7, ]906 (34 Stat. L., 178), the following vote was cast for petitioner, James Wick- ersham, contestant, and for Charles A. Sulzer, contestee, and for said Lena Morrow Lewis, respectively, to wit : For James Wickersham, contestant, 6,490 votes ; for Charles A. Sulzer, contestee, 6,459 votes ; for Lena Morrow Lewis, 1,346 votes. VI. The said canvassing board for the Territory of Alaska, as provided in sec- tion 12 of said act of Congress approved May 7, 1906, consisted of Hon. J. F. A. Strong, governor of Alaska ; Hon. Charles E. Davidson, surveyor general of Alaska ; and Hon. John F. Pugh, the collector of customs for Alaska ; and said canvassing board met and organized as said canvassing board in the city of Juneau, Alaska, at the public office of the governor in the month of February, 1917, and from day to day met in session as said canvassing board and publicly canvassed and compiled in writing the vote specified in the certificates of elec- tion returned to the governor of Alaska from all the several election precincts in said Territory, in accordance with the several provisions of the laws of the United States ; and the said canvassing board, on the 1st day of March, 1917, did complete its canvass and compilation of all the returns so received from all the several precincts as aforesaid of the said general election so held in the Territory of Alaska on the 7th day of November, 1916, and that the official tally sheets made up by the said board were duly totaled and checked, and that the same showed the following result of the vote for the several candi- dates for Delegate to Congress from Alaska : Lena Morrow Lewis, 1,346 votes ; Charles A. Sulzer, 6,459 votes; and James Wickersham, this contestant, 6,490 votes. VII. That upon completion of the canvass and compilation of the returns and the totaling and checking of the tally sheets of the board said board voted to issue certificates of election to the candidates for the various offices who had received the greatest number of votes in the said general election aforesaid, as shown by the official tally sheets of the board ; and that in pursuance of such action by the canvassing board, and prior to the service of the alternative writ of mandamus hereinafter mentioned upon the members thereof, a certifi- cate of election was prepared by said board for issuance to James Wicker- WICKEKSHAM VS. SULZER. 5 ■sham, this contestant, as Delegate to Congress from Alaska for the term begin- ning ]\Iarch 5. 1917, but that before said certificates had been signed and issued by the board the members thereof were served with the alternative Avrit of mandamus hereinafter mentioned, and the said board was thereby prevented from signing and issuing, said certificate of election to this contestant pending the further order of the court therein. VIII. That on said March 1, 1917, the said canvassing board in due and regular session, in the public office of the governor of Alaska, after the completion of its canvass and compilation of all the said returns from all the precincts in the Territory of Alaska, did publicly and officially declare that this contestant, James Wickersham. had received the greatest number of votes for the office of Delegate from Alaska to the Sixty-fifth Congress, at said election so held in said Territory on said November 7, 1916, and did publicly and officially declare this contestant. James Wickersham, to be duly and legally elected Delegate from Alaska to the Sixty-fifth Congress, and duly, publicly, and officially declared the purpose and intention of the said canvassing board to issue and deliver to this contestant, James Wickershnm, in writing, under their hands and seals, a cer- tificate of his said election as Delegate from Alaska, as aforesaid, at the con- vening of the board on March 2, 1917. IX. That on the said March 2. 1917, and before the said canvassing board did sign and deliver the said certificate of election to this contestant, the said Charles A. Sulzer, contestee herein, began a suit in equity in the district court for the District of Alaska, division No. 1, at Juneau, Alaska, which said suit was entitled-" The Territory of Alaska on the relation of Charles A. Sulzer. and Charles A. Sulzer, relator and plaintiff, v. The Canvassing Board for the Terri- tory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants." and numbered 1593-A in said court, and did on that day file Ms verified petition in said court praying for the issuance of a writ of man- damus and a temporary rule against the aforesaid members of said canvassing board and the said board to restrain them and it from issuing the said cer- tificate of election to James Wickersham, this contestant, and to compel them and it to issue the said certificate of election to the contestee, Charles A. Sulzer. X. ' The ground stated in said petition as the basis for the relief demanded was that the election returns from the precincts of Choggiung, Deering, Nizina, Nushagak, Utica, Bonnifield, and Vault, in said Territory, were invalid and void, for the faikare of the election officers in said precincts to include and return with said retui'ns a certificate certifying the reasons why the one form of the official liallots was not received in said polling places and used at said election and why other ballots, also official and authorized by law, were used in place thereof ; that said petitioner, Sulzer, among other things in said petition alleged that from the said returns of said election it appears that of the total vote cast in said Territory for the office of Delegate to Congress the relator and plaintiff. Charles A. Sulzer, received 6,438 votes, the said James Wickersham received 6,414 votes, and the said Lena Morrow Lewis received 1,346 votes ; and further alleged that thereupon it became the duty of the said canvassing board to issue a certificate of election, in accordance with said vote and returns, to the relator and plaintiff, Charles A. Sulzer, he being the person having received the highest number of votes, as shown by said returns : and further alleged that the said canvassing board has refused, and is still refusing, to issue said cer- tificate of election to this relator and plaintiff, but. on the contrary, has threat- ened and announced their intention to disregard the legal election returns above referred to in determining to whom said certificate shall issue and threaten and intend to count and canvass together with the returns aforesaid certain false, spiirious, and illegal A'otes, which returns and votes, if counted together with the legal returns of votes, will change the result of the said election as here- inafter set forth ; and further alleged that the false, spurious, and illegal votes 6 WICKERSHAM VS. SULZER. and returns threatened to be counted consists of the false, spurious, and illegal votes from the following precincts of the Territory of Alaska, to wit : Chogguing : Votes. For James Wickersham 25 For Charles A. Sulzer 3 Deering : For James Wickersham 10 For Charles A. Sulzer 6 Nizina : For James Wickersham 7 For Charles A. Sulzer 2 Nushagak : For James Wickersham 10 For Charles A. Sulzer 3 TJtica : For James Wickersham 13 For Charles A. Sulzer 4 Bonafield : For James Wickersham 3 For Charles A. Sulzer 1 Vault : For James Wickersham 8 For Charles A. Sulzer 2 and further alleged that in the precincts of Choggiung, Deering, Nizina, Utica, Nushagak, and Bonnifield the said vote was and is illegal, false, and spurious in this : That the votes cast and threatened to be counted by the said can- vassing board, were not cast in accordance with law, in that the voters casting said ballots failed to use the form of official ballot prescribed by the laws of Alaska, and failed to use the official ballots prepared for said election according to the laws of Alaska, but, on the contrary, in casting said votes,- used a form of ballot, either prepared by the voters themselves, or by some person other than the person or persons authorized by law to prepare and provide said bal- lots ; and further alleged that the laws of Alaska provide as follows : " That in any precinct where the election has been legally called, and no official ballots have been received, the voters are permitted to write or print their ballots, but the judges of election shall, in this event, certify to the facts which pre- vented the use of the official ballots, which certificate must accompany and be made a part of the election returns " ; and further alleged that in each of the precincts above referred to where no official ballots were used, no, certificate explaining the facts which prevented the use of the official ballot accompanied the returns ; and further alleged that in none of the precincts above enumerated where the official ballot was not used as aforesaid, were the election returns transmitted to the canvassing board accompanied by a certificate of the judges of election, or of any other person or persons whatsoever, certifying to the facts, if any there were, which prevented the use of the official ballots, if the use of such ballots was in any manner prevented, but, on the contrary, the bal- lots cast, if any were cast, in each of the precincts above enumerated, were returned to the election board without any certificate setting forth any facts which in any wise prevented the use of the official ballot ; and further alleged that the returns from the aforesaid precinct of Vault are false, spurious, and illegal, in that said returns are not certified to as provided by law, and in that no certificate of the result of the election in said precinct, specifying the num- ber of votes cast for each candidate, accompanied or was included in said re- turns, as required by section 402 of the Compiled Laws of Alaska ; and fur- ther alleged that if the aforesaid false, spurious, and illegal votes for the pre- cinct aforesaid are counted and canvassed by the said canvassing board, to- gether with the legal votes cast at said election, the total vote counted for James Wickersham will be 6,490 and the total vote cast for Charles A. Sulzer will be 6,459 ; and further alleged that the said canvassing board do now threaten and intend, and will, unless restrained by an order of this honorable court, so count and include said false, spurious, and illegal votes in compiling the totals from said election returns for the Territory of Alaska, and do now threaten, and intend, and will, unless restrained by this honorable court, issue a certificate of election to the said James Wickersham, based upon said false compilation of votes, notwithstanding that your relator and plaintifC herein WICKEESHAM VS. SULZEE. 7 received the highest number of votes cast at said election, and is entitled to said certificate of election ; and further alleged that the plaintiff and relator has no plain, speedy, or adequate remedy in the ordinary course of the law, and will be deprived of a certificate of election entitling him to the oflice of Delegate to Congress for the Territory of Alaska, unless this court issue this return of mandate, compelling the said canvassing board to reject and not count the returns from each and all of tlie foregoing precincts, hereinbefore enumerated, and compelling the said canvassing board to issue to the relator and plaintiff herein, its certificate certifying that he was duly and regularly elected to said office of Delegate to Congress ; and, further, that the said can- vassing board threatens to, and will perform and do each and all of the acts above stated before a hearing can be heard upon this petition, and will so pro- ceed unless a temporary rule is issued by this honorable court empowering and restraining said canvassing board from so proceeding, pending this litigation, and until the matter can be heard upon its merits by this court ; whereupon the said Charles A. Sulzer prayed the court to issue its writ of mandamus di- rected to said canvassing board and each of the members thereof, commanding said canvassing board and each of the members thereof to reject and not count the alleged false, spurious, and illegal ballots therein referred to, and each and all of the same, and to reject the returns from said precincts v\'here said ballots were cast, and to canvass and compile the votes cast in said election from the returns, legal and regular, which he claimed to be the only legal and regular returns, and issue the certificates of election to him, the said Charles A. Sulzer, and that they show cause before this honorable court on a day to be fixed by the court why they have not done so ; and that they then and there return this writ with their certificates annexed of having done as they are commanded, or the cause of their omission thereof ; and the said petition also prayed for a temporary rule restraining the said board from proceeding to do the matters and things therein complained of, or any one or all of them, pending the final determination of this proceeding, and for such other and further relief as to the court may seem just and equitable ; that the said petition was signed by the said Charles A. Sulzer, verified by him. and by him filed in the aforesaid dis- trict court for the Territory of Alaska, first division, on said March 2, 1917, and service of a copy thereof was made upon each of the members of the said canvassing board on said date. XI. That immediately upon the filing of the said petition in the said court an alternative writ of mandamus and a restraining order as prayed for in said peti- tion was issued by Robert W. Jennings, judge of said court, and immediately thereafter served upon each of the said members of the said canvassing board ; that said writ was entitled as hereinbefore described, and directed to the said canvassing board of the Territorry of Alaska, constituted for the purpose of can- vassing the vote cast at the election held on November 7, 1916, and to J. F. A. Strong, Charles E. Davidson, and John P. Pugh, the persons constituting said board, and the commanding clause thereof was as follows : " I, Robert W. Jennings, judge of the above-entitled court, in the name of the United States of America, do hereby command you, and each of you, that in can- vassing the vote cast for Delegate to Congress for the Territory of Alaska, at the election held on November 7, 1916, you reject and do not count the returns and the votes received and transmitted to you from the following precincts, to wit : Choggiung : For James Wickersham 25 For Charles A. Sulzer 3 Deering : For James Wickersham 10 For Charles A. Sulzer ': 6 Nizina : For James Wickersham 7 For Charles A. Sulzer 2 Nushagak : For James Wickersham 10 For Charles A. Sulzer S Utica : For James Wickersham , 13 For Charles A. Sulzer 4 b WICKEESHAM VS. SULZEE. Bonafield : For James Wickersham 3 For Charles A. Snlzer 1 Vault : For James Wickersham 8 For Charles A. Sulzer 2 and that you issue a certificate of election to Charles A. Sulzer. the relator lierein, certifying that he has been duly elected as a Delegate to Conaiess for the Territory of Alaska at the election held on November 7, 1916, and tiiat you, and each of you, return this writ with your certificate, and the certificates of each of you annexed, of having- done as you are herein commanded, or the cause of your omission thereof, on the 3d day of March, 1917, at the hour of 2 p. m. of iiaid day, at the courthouse in the city of Juneau. Alaska, and at the court room thereof, and you are hereby restrained from counting the votes or receiving the returns from any one or more of the precincts above named until the further order of this court. " Done in open court this 2d day of March, 1917. " RoBEKT W. Jennings, Judge." Tliat thereafter and on the same day a copy of the above order was served upon each of the said defendants, J. F. A. Strong, governor of Alaska ; Charles E. Davidson, surveyor general of Alaska ; and John F. Pugh. the collector of customs for Alaska, comprising the members of the said canvassing board. XII. That such proceedings were had in said case that on the 6th day of March, 1917, John F. Pugh, one of the defendants in said cause, and the collector of customs for Alaska, and a member of said canvassing board, filed his verified answer in said cause, admitting all the allegations of the said petition and writ, and declared his willingness to comply with the alternative writ issued by XIII. That on March 7, 1917, a stipulation was filed by the attorneys for the said Charles A. Sulzer and signed by them and by the three defendants, the members of the canvassing board, settling the pleadings in the said cause. XIV. That on March 6, 1917, Hon. J. F. A. Strong, governor of Alaska, and Charles E. Davidson, surveyor general of Alaska, members of said canvassing board, and a majority thereof, made answer to the alternative writ of mandamiis so served tin them in said cause, Avhich answer was on that day filed in said court and cause ; that said Strong and Davidson in their answer alleged as follows : In the District Court of the Territory of Alaska. Division No. 1. The Territoey of Alaska, on the relation oe Charles" A. Sulzer, and Charles A. Sulzer, relator and plaintiff:, V. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants. . Come now J. F. A. Strong and Charles E. Davidson, memliers of the can- vassing board for the Territory of Alaska, and defendants in the above entitled action, and for their answer to the alternative MTit of mandamus issued and served upon them herein, state as follows : 1. That the territorial canvassing board did, on the 1st day of March, 1917, complete its canvass and compilation of the returns of the general election held in the Territory of Alaska on the 7th day of November. 1916, and that the official tally sheets made up by the said board were duly totaled and checked, and that the same showed the following result of the vote for the several candidates for Delegate to Congress from Alaska : Lena Morrow Lewis, 1,346 votes ; Charles A. Sulzer, 6,459 votes ; and James Wickersham. 6,490 votes. 2. That upon completion of the canvass and compilation of the returns and the totaling and checking of the tally sheets of the board, the said board voted to issue certificates of election to the candidates for the various offices who had received the greatest number of votes in the said general election afore- said, as shown by the official tally sheets of the board; and that in pursuance of such action by the canvassing board, and prior to the service of the alterna- Answer to alternative writ of mandamus. WICKEBSHAM VS. SULZEE. 9 tive writ of mandamus upon the members thereof q rprtifinafo r.f\^r.„^-■ 3. That in the canvass of the returns from the votin- precincts named in thP al ernative writ of mandamus herein, and in the petition fileTStlSSuse Ht following irregularities were found in the returns from thrresi it ve Secftcts hnSiVf?"?r ^^'^ '?*?"^' ^^■•^^^ t^^^^ ^'°«ng precinct showed that onofficiai L'rb\no?sSS\S;" ^"'^'"^^^ accompanied the returns sLr.fwhy h.l?.''f"\""; ,^^'^ i-etnnis from this voting precinct showed that nonofficial bal ots had been used, but no certificate accompanied the return^ .Ik. vio-.,lf^^ such ballots had been used. In this connection, for the infoiSiation of the cm ? and as p;.rt of this answer, there is attached hereto, iZker-Eiifbitl'The original telegram received by the canvassing board fi^om the clerko? the Uni ed States District Court for the Second Judicial Division, in wliich the ?iid c lerl states that he has received an affidavit of one of the 1u is of th? DeeS Tffi"!f, WuT''' ""'"'^ '"" ^e^-t"icate from another of said i dges? showin<. w f officia ballots were not used in said voting precinct; and that saicrcle?k has milled a copy of said affidavit and certificate to the canvassing bSard but the same have not yet been received by the board ' ^ c,mr^\Tr'? ^^f ^'''"^ ''^ the Utica voting precinct, the returns showed that non- official l>almrs !iaa oeen used, but no certificate accompanied the returns shoAv^o. why such ballots were used. In this connection, reference is here made to Se telegi-am from the clerk of the district court for the second judicS? clivision hereto a tached as a part of this answer and marked "Exhibit A" in^S iT lelf U wr^''':;f f'r "•' '''T'' ^^^- ""'"'^ precinct had on Jamfa V 18. 1917. is^sued a certificate showing Avhy official ballots were not used in said precmct that said clerk had received said certificate, and tha^l e hac maiS board!' ^-anvassing board; but the same has not yet been recehed by the Nizina: In the case of the Nizina voting precinct the oniy irregularity shown th.t nn^'Vi^*^'^r^"™'1' '?. ^^" ^^ ^^'^ canvassing board could determine, was that one of the three election judges had sworn the other two but there was nothing to show that he had himself been sworn: although he had signed the oath form with the other two judges Nushagak: In the case of the Nushagak voting precinct, the ballots used were Democratic " party worker's " ballots, but no certificate accompanied the returns showing why such ballots were used. ^ Bonnifield: In the case of the Bonnifield voting precinct, ballots marked _ bample ballots ' were used, but no certificate accompanied the returns show- ing why such ballots were used. Vault : In the case of Vault voting precinct, the election judges did not sign .the certificate of result form on the back of the election registei^and tally book but the canvassing board received from the clerk of the United States district court for the fourth judicial rlivision. in which said precinct is located, the ; Certificate of the clerk to election returns." bearing the names of the election judges for said voting precinct, and duly certified bv the clerk of the court as a full, true, and correct copy of the original on file in his office. 4. That as to the reasons why the canvassing board counted the returns from the voting precincts named in the petition and in the writ of mandamus issued lierein these defendants state as follows : That, acting in the capacity of a canvassing board, thev believed, and still l)elieve. that they were acting in the capacity of a ministerial bodv onlv. and not as a judicial body, and, therefore, that it was not the dutv of' said "board to construe the provisions of the election laws, either Federal or Territorial, or to decide legal questions invoh^ed with respect to certain technical irregularities in the returns from any of the voting precincts, including the returns from the voting precincts of Choggiung, Deering, Nizina, Utica. Nushagak. Bonnifield, and Vault, except to determine, in so far as they could, the rearintention of the voters ; there being no fraud shown on the face of the returns, and no allega- tions of fraud therein having been made to the canvassing board; and the board further believed, and still believes, that the provision of the law which directs election boards to show why official ballots were not used, is directory only. 10 WICKEESHAM VS. SULZEE. 5. These defendants furthei- respectfully state that they have made no further answer to the allegations contained in the petition tiled herein, for the reason that the canvassing board has no funds with which to employ legal counsel, and the members thereof do not conceive it to be their duty to employ such counsel and pay for his services from their private means. Wherefore, having answered the writ herein, these defendants respectfully ask that they be discharged therefrom and that the proceedings herein l/e dismissed. J. F. A. Steong, Chaeles E. Davidson, Canvassing Board. Exhibit A. Signal Corps, United States Army. [Telegram.] Received at 35 sikg. 43 OB. Nome, Alaska, Fehriiarji 12. 1917. Steong, Governor-, Vhairman Canvassing Board, Juneau. Certificate Utica judges issued January 18th showing why olRci;il Ijallots not used received to-day. affiidavit of one certificate of second judge of elec- tion Deering Precinct dated February 2 of same tenor also received ; copies mailed. Adams, Cler]^: (3.45 p. m.). Governor's office. Received February 12, 1917. Answered. United States of America, Territory of Alaska, ss. I, J. F. A. Strong, being first duly sworn, on oath depose and say that I am one of the defendants named in the above-entitled action, and a member of the canvassing board for the Territory of Alaska, being the chairman of said board ; that I have read the foregoing answer, know the contents thereof, and the same is true, to the best of my knowledge and belief. J. F. A. Strong. Subscribed and sworn to before me this 6th day of March. 1917. Ohas. E. Naghel, [notarial seal.] Notary Puhlie for Alaska. My commission expires November 1, 1920. Filed in the district court, District of Alaska, First Division, March 5, 1917, J. W. Bell, clerk, by John T. Reed, deputy. XV. That thereafter and on March 21, 1917, the said J. F. A. Strong, governor of Alaska, and Charles E. Davidson, surveyor general of Alaska, as members and a majority of the said canvassing board, made and filed in said court and cause a supplemental answer in which they show that in addition to the facts set forth in their original answer to the alternative writ, that a protest against the canvass and compilation of the election returns from certain pre- cincts in the different judicial divisions of Alaska, was filed with the can- vassing board on March 21, 1917, which sets forth in detail the precincts and the alleged irregularities charged in the protest, and the canvassing board filed a copy of said protest in said court and answered further saying that irregularities of different kinds did actually exist in many of the voting pre- cincts of the Territory, but the board being without legal counsel therefore begs to submit the protest herein referred to. and respectfully asked to be instructed as to what disposition the said board should make of said protest. That said protest so mentioned in said supplemental answer of the canvass- ing board, and attached thereto and made a part thereof, was filed with the said canvassing board by Emery Valentine on the 21st day of March, 1917. and in said protest the said Valentine protested against the counting of a large num- ber of returns from various precincts in each of the divisions of the Territory of Alaska for the irregularities mentioned therein, and he particularly calls the attention of the canvassing board to the fact that certain of the other pre- cincts which had not been objected to in the said suit brought by the said Sulzer were afflicted with the same identical defects as those pointed out in the said suit, and that in the precincts mentioned in the protest and which were not included in the list of precincts objected to by Sulzer, a majority of WICKEESHAM VS. ■ SULZEE. 11 the votes were in favor of the said Sulzer, and if stridden out would reduce his vote and not increase it ; that said supplemental answer of the canvass- ing board, together with the protest of the said Emery Valentine, was filed in said court and cause on March 21, 1917. XVI. That upon ascertaining that said supplemental answer, together with the protest of the said Emery Valentine, had been filed with the said court in said cause and in answer to the request of the majority of the canvassing board as to what disposition the board should make of the said protest, Robert W. Jen- nings, judge of the said court, wrote a letter dated March 22, 1917, addressed to Hon. J. F. A. Strong, governor, and Hon. Charles E. Davidson, surveyor general, members and a majority of the said canvassing board, and caused the same to be served in due and legal form upon each of the said members of the said canvassing board, and caused a copy thereof to be filed in the office of the clerk of the said court and in said cause, together with proof of service thereof upon the members of the said canvassing board. The said letter is in the fol- lowing words : United States district court, first division, District of Alaska, Robert W. Jennings, Judge. Judge's Chambers, Juneau, March 22, 1911. Hon. J. F. A. Stkong, Governor, and Hon. Charles E. Davidson, Surveyor General, Territory of Alaska, Juneau, Alaska. Gentlemen : At your request, as I am informed, the clerk of this court has brought to my attention a certain communication signed by you, in which you state that a protest has been filed with the canvassing board by Mr. Emery Valentine, of this city, suggesting the rejection of the votes of certain precincts cast at the last election for Delegate to Congress, and in which you state that the " board begs to submit the protest herein referred to, and respectfully asks to be instructed as to what disposition the said board should make of said protest," and in reply I have to state : Your communication is entitled in the cause " The Territory of Alaska on the relation of Charles A. Sulzer and Charles A. Sulzer, relator and plaintiff, v. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John P. Pugh, defendants. No. 1593." The above-entitled cause is a proceeding brought in this court for the issuance of a mandamus compelling you to reject, i. e., not count the returns from certain precincts stated in the petition on account of certain alleged fatal defects — not irregularities, but defects — in the returns from said precincts. An alternative writ of mandamus was issued and served upon you, and you were also enjoined from issuing the certificate of election to James Wickersham. To that alterna- tive writ and the petition on which it was founded you have made answer, stating : " That the Territorial canvasing board did, on the 1st day of March, 1917, complete its canvass and compilation of the returns of the general election held in the Territory of Alaska on the 7th day of November, 1916, and that the official tally sheets made up by the said board were duly totaled and checked, and that the same showed the following result of the vote for the several candidates for Delegate to Congress from Alaska : Lena Morrow Lewis, 1,346 votes ; Charles A. Sulzer, 6,459 votes; and James Wickerham, 6,490 votes." (Par. 1.) And further, " that in pursuance of such action by the canvassing board, and prior to the service of the alternative writ of mandamus upon the members thereof, a certificate of election was prepared by said board for issuance to James Wickersham as Delegate to Congress from Alaska for the term beginning March 5, 1917 ; but that before said certificate had been signed and issued by the board the members thereof were served with the writ of mandamus herein." (Par. 2.) Your answer further avers that the allegations of fact made in the petition as to the reasons why the precincts of Choggiung, Deering, Utica, Nushagak, Bonnifield, and Vault should not be counted were true, but that you considered that, nevertheless, said precincts should be counted and that you counted them. The plaintiff demurred to your answer, and that brought up the question as to whether or not on your answer the certificate should be issued to Wickersham or Sulzer. 12 WICKEKSHAM VS. SULZEE. It furthei' aiDpeared from your answer tliat you had no attorney. At the hearing on this demurrer Mr. Davidson was present in court, and the court ad- vised him to procure an attorney ; whereupon he stated : " Your honor, we have no interest in it any more than we would like the law point decided, and we have made our answer the best we could, and we have Qo other interest any more than to obey the orders of this court, whatever they may be." The court then heard argument on the demurrer in open court, and on the 20th day of March, 1917, in open court made and filed its order herein, sustaining the demurrer of the plaintiff, and filed its written opinion, and you have been furnished with copies of said opinioii. I endeavored to make that opinion as full and clear as I could. It appears that in the 6.490 votes you have credited to James Wickersham, and in the 6,459 votes credited to Charles A. Sulzer, and in the 1,346 votes credited to Lena Morrow Lewis, you counted votes from the precincts questioned in the petition and which the court hns decided should be rejected, and in your answer you stated that you had completed the canvass. In view of the allegations of the answer and of what Mr. Davidson stated in open court, the court concluded that all other questions had been passed upon by you and that you had indeed completed your " canvass and compilation," and " that the official tally sheets made up by the board were duly totaled and checked." Now you state in your communication to me that some private citizen has lately entered a protest of some kind and that there are some irregularities which have not entered into the case that has been lieard before me, and on which I issued the alternative writ, and you ask my advice as to what you shall do. I would be very glad indeed to advise you if I were at liberty to do so, but occupying the position which I do occupy, i. e., being the judge before whom the cause" is pending, it would be very improper for me to take any such action. When a matter is pending in court the judge of that court is in no position to act as the legal adviser of one of the litigants, neither can he instruct them ex- cept through orders, judgments, and decrees, duly made. I think, however, that I may say this much without transgressing the rules of propriety : The court will, if you so desire, tre;it your communication as an amended and supplemental answer. If you desire it to be so treated you should serve a copy thereof on the attorneys for the plaintiff. Yours, very respectfully, Robert W. Jennings, Judge. Copies to Gov. Strong and Mr. Davidson. Filed in the district court, District of Alaska, first division, March 22, 1917, J. W. Bell, clerk, by John T. Reed, deputy. XVII. That thereafter and on March 23, 1917, Hon. J. F. A. Strong, governor, and Hon. Charles E. Davidson, surveyor general, wrote the following communication and delivered the same to Robert W. Jennings, judge of said court, and the same was filed in said court and cause on March 23, 1917 : Teeritoey of Alaska, Goveenor's Office, Juneau, March 23, 1917. Hon. Robert W. Jennings, Judge, United States District Court, First Judicial Division, Juneau, Alaska. Dear Sir : The undersigned members of the Territorial canvassing board beg to acknowledge receipt of your letter of March 22, with reference to a com- munication addressed to you, in which it was stated that the canvassing board had been served with a document by Mr. Emery Valentine, of Juneau, protest- ing against the counting of certain specified election returns from various voting precincts in the four "judicial divisions in Alaska, on the ground that the " district court holds that no documents which were not inclosed and forwarded to the governor's office as part of the original returns can be counted or taken into consideration by the board." The reason for the submission of the protest to you was set out in our com- munication above referred to and forwarded to you on March 22 by the above- named members of the board. In reply we wish to say that we merely asked to be instructed as to the proper method or procedure in disposing of the protest above referred to; and your WICKEKSHAM VS. SULZER. 13 reply seems to indicate that no attention should be paid to protests entered by private citizens as to alleged irregularities in election returns, and therefore it would seem that the above members of the canvassing board held erroneous views on this matter. You also state that the court will, if we so desire, treat our communication of March 22 as an amended and supplemental answer. We wish to advise you, therefore, that we have no desire to have you treat the com- munication in that manner, nor have we any other answer to make at this time, having, as we believe, performed only what we, though apparently er- roneously, believed was a simple duty. Finally, we wish to state, distinctly and unqualifiedly, that, having per- formed what we believed to be our duty and in the interest of no candidate, we are without further interest in the matter. EespectfuUy, J. F. A. Strong, Governor. Charles E. Davidson, Surveyor General. Filed in the district court. District of Alaska, first division, March 23, 1917. J. W. Bell, clerk. By ■ , deputy. XVIII. That thereafter, and on the 23d day of March, 1917, the said Robert W. Jennings, judge of the said court in the said cause, without taking any evidence or hearing witnesses, and without any further proceedings than those men- tioned, made and signed a peremptory writ of mandamus, directed to the can- vassing board of the Territory of Alaska, consisting of J. F. A, Strong, Charles E. Davidson, and John F. Pugh, and in the words and figures following, to wit : In the district court for the District of Alaska, division No. 1, at Juneau. The Teeritory of Alaska, on the relation of " Charles A. Sulzer, and Charles A. Sulzer, relator and plaintiff, V. i^Peremtory writ of man- damus. No. 1593-A. The Canvassing Board for the Territory of Alaska, •consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants. To the canvassing board for the Territory of Alaska, consisting of J, F. A. Strong, Charles E. Davidson, and John F. Pugh. To you and each of you greeting : In the name of the United States of America. Whereas on the 2d day of March, 1917, the plaintiif herein duly filed his petition for a writ of mandamus, wJiich said petition is in words and figures as follows : " In the district court for the Territory of Alaska, division No. 1. " The Territory of Alaska, on the relation of ' Charles A. Sulzer, and Charles A. Sulzer, relator and plaintiif, '^- l>Petition. No. 1593-A. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants. , " To the honorable Robert W. Jennings, judge : " The relator and petitioner herein petitions this honorable court for a writ of mandamus and a temporary rule as hereinafter more specifically set forth, and in that behalf respectfully alleges and avers : "I. " That the relator and plaintiff was a candidate for the office of Delegate to Congress at the election held in the Territory of Alaska on the 7th day of November, 1916, and as such candidate was voted for by the people of Alaska at said election, he having been regularly nominated and placed upon the official ballot pursuant to the provisions of law entitling him to become a candidate and entitling Mm to a place upon the otiicial ballot. 14 WICKERSHAM VS. SULZEE. "II. " That at said election one James Wickersham was also a candidate for the said office of Delegate to Congress, and one Lena Morrow Lewis was also a candidate for the office of Delegate to Congress. There were no other candidates. "III. " That the above-named J. F. A. Strong is the governor of the Territory of Alaska, duly appointed and acting as such ; that the above-named Charles A. Davidson is the duly appointed and acting surveyor general of the Territory of Alaska, and the above-named John F. Pugh is the duly appointed and acting collector of customs for the Territory of Alaska. "IV. " That the above named comprise the canvassing board empowered and directed by law to canvass the votes cast by the voters of the Territory of Alaska at the election held on the 7th day of November, 1916, for the office of Delegate to Congress, and other officers. "V. " That the said board named as the respondent herein is now in session, and has been in session for some time past, engaged upon its duties of canvassing the returns of the various precincts within the Territory of Alaska. " VI. " That from the aforesaid returns from said election it appears that of the total votes cast in said Territory for the office of Delegate to Congress this relator and plaintiff received 6,438 votes, the said James Wickersham received (5,414 votes, and the said Lena Morrow Lewis received J, 346 votes. " VIL " That thereupon it became the duty of the said canvassing board to issue a certificate of election, in accordance with said vote and returns, to this relator and plaintiff, Charles A. Sulzer, he being the person having received the highest number of votes, as shown by said return. " VIII. "That the said canvassing board has refused, and is still refusing, to issue said certificates of election to this relator and plaintiff, but on the contrary has threatened and announced their intention to disregard tlie legal election returns above referred to in determining to whom said certificate shall issue and threaten and intend to count and canvass together with the returns afore- said certain false, spurious, and illegal votes, which returns and votes if counted together with the legal returns of votes will change the result of the said elec- tion as hereinafter set forth. "IX. " That the false, spurious, and illegal votes and returns threatened to be counted consists of the false, spurious, and illegal votes from the following precincts of the Territoory of Alaska, to wit : Choggiung : For .James Wickersham 2-5 For Charles A. Sulzer 8 Deering : For James Wickersham 10 'For Charles A. Sulzer 6 Nizina : For James Wickersham 7 For Charles A. Sulzer ^ 2 WICKEESHAM VS. SULZER. 15 Nushagak : For James Wic-kersham 10 For Charles A. Snlzer 3 Utica : For James Wickersham 13 For Charles A. Sulzer 4 Bonafield : For James Wickersham 3 For Charles A. Sulzer 1 Vault : For James AVickersham 8 For Charles A. Sulzer 2 "X. " That in the precincts of Choggiung, Deering. Nizina, Utica, Nushagak, and Bonafield, the said vote was, and is, illegal, false, spurious in this, that the votes cast and threatened to be counted by the said canvassing board were not cast in accordance with law in that the voters casting said ballots failed to use the form of official ballot prescribed by the laws of Alaska and failed to use the official ballots prepared for said election according to the laws of Alaska, but, on the contrary, in casting said votes, used a form of ballot either pre- pared by the voters themselves or by some person other than the person or persons authorized by law to prepare and provide said ballots. "XL " That the laws of Alaska provide as follows : " ' That in any precinct where the election has been legally called and no official ballots have been received, the voters are permitted to write or print their ballots, but the judges of election sliall in this event certify to the facts which prevented the use of the official ballots, which certificate must accompany and be made a part of the election returns.' " XII. " That in each and every one of the precincts above referred to. where no official ballots were used, no certificate explaining the facts which prevented the use of the official ballot accompanied the returns. "XIII. " That in none of the precincts above enumerated where the official ballot was not used, as aforesaid, were the election returns transmitted to the can- vassing board accompanied by a certificate of the judges of election, or of any other person or persons whatsoever, certifying to the facts, if any there were, which prevented the use of the official ballots, if the use of such ballots was in any manner prevented, but on the contrary the ballots cast, if any were cast, in each of the precincts above enumerated were returned to the election board without any certificate setting forth any facts which in anywise prevented the use of the official ballot. " XIV. " That the returns from the aforesaid precinct of Vault are false, spurious, iind illegal in that said returns are not certified to as provided by law and in that no certificate of the result of the election in said precinct specifying the number of votes cast for each candidate accompanied or was Included in said returns, as required by section 402 of the Compiled Laws of Alaska. " XV. " That if the aforesaid false, spurious, and illegal votes for the precinct afox-esaid are counted and canvassed by the said canvassing board, together witli the legal votes cast at said election, the total vote counted for Jamtes Wickersham will be 6,490. and the total vote cast for Charles A. Sulzer Avill be 6.459. 16 WICKEESHAM VS. SULZEK. " XVI. " That tlie said canvassing board do now tlireaten and intend and will, unless restrained by an oi'der of tliis honorable court, so count and include said false, spurious, and illegal votes in compiling the totals from said election returns for the Territory of Alaska, and do now threaten and intend and will, unless restrained by this honorable court, issue a certificate of election to the said ' James Wickersham, based upon said false compilation of votes, notwithstanding that your relator and plaintiff herein received the highest number of votes cast at said election and is entitled to said certificate of election. " XVII. " That plaintiff and relator has no plain, speedy, or adequate remedy in the ordinary course of law and will be deprived of a corticate of election entitling him to the office of Delegate to Congress for the Territory of Alaska unless this court issue this return of mandate compelling the said canvassing board to reject and not count the returns from each and all of the foregoing precincts hereinbefore enumerated and compelling the said canvassing board to issue to the relator and plaintiff herein its certicate certifying that he was duly and regularly elected to • said office of Delegate to Congress ; and further, that the said canvassing board threatens to and will perform and do each and all of the acts above stated before a hearing can be heard upon this petition, and will so proceed unless a temnorai-y rule is issued by this honorable court empowering and restraining said canvassing board from so proceeding, pending this litiga- tion and until the matter can be heard upon its merits by this court. " Wherefore the relator and plaintiff herein prays that this honorable court issue its writ of mandamus directed to said canvassing board and each of the members thereof commanding said canvassing board and each of the members thereof to reject and not count the false, spurious, and illegal ballots herein- before referred to, and each and all of the same, and to reject the returns from said precincts where said ballots were cast, and to canvass and compile the votes cast in said election from the returns, legal and regular, as hereinbefore stated, and issue a certificate of election to this relator and plaintiff, or that they show cause before this honorable court on a day to be fixed by the court why they have not done so, and that they then and there return this writ with their certificates annex^ of having done as they are commanded, or the cause of their omission thereof. "And further, that a temporary rule be made and issued out of this court re- straining the said board from proceeding to do the matters and things herein complained of, or any one or all of them, pending the final determhiation of this proceeding, and for such other and further relief as to the court may seem just and equitable. "And plaintiff further prays for his costs and disbursements in his behalf in- curred. " John R. Winn, " Hellenthal & Hellenthal, "Attorneys for Plaintiff. " Terkitoey of Alaska, " Dwision No. 1, ss: " Charles A. Sulzer, being first duly sworn according to law, on oath deposes and says : That he is the relator and plaintiff herein ; that he has read the fore- going complaint and petition for writ of mandamus and for a temporary rule; that he knows the contents thereof; and that the facts therein stated are true as he verily believes. " Charles A. Sulzer. " Subscribed and sworn to before me this 2d day of IMarch, 1917. "(Notarial Seal.) "Simon Hellenthal, " Notary Public for Alafska. " My commission expires November 30, 1917. " Filed in the district court. District of Alaska, first division. Mar. 2, 1917. J. ^Y. Bell, clerk. By , deputy." And whereas on the filing of said petition an alternative writ was on said day duly issued herein (which said alternative writ of mandamus and the peti- WICKERSHAM VS. SULZEE. 17 titui on which it was based were on the same day dulj' ser'^ed upon yon) connnanding yon to do the things aslved in tlie petition or to show canse on the 3d day of Marcli, 1917, at 2 o'clock p. m., at tlie conrthouse at Jnneau, why yon had not done so ; and Whereas on the 5tla day of Marcli, 1917. you, the said J. F. Pugli, did tile your answer herein, in which you admitted the allegations of the petition and the writ of mandamus ; and you, J. F. A. Strong and Charles E. Davidson, did tile your answer, wherein it was stated : " That the Territorial canvassing board did, on the first day of March, 1917, complete its canvass and compilation of the returns of the general election held in the Territory of Alaska on the 7th day of November, 1916, and that the official tally sheets made up by the said board were duly totaled and checked, and that the same showed the following result of the vote for the several candi- dates for Delegate to Congress from Alaska : Lena Morrow Lewis, 1,346 votes ;^ Charles A. Sulzer, 6,459 votes ; and James Wickersliam, 6,490 votes ; " and where it was further stated: •' That upon completion of the canvass and compilation of the returns and the totaling and checking of the tally sheets of the board said board voted to issue certificates of election to the candidates for the various offices who had j-eceived the greatest number of votes in the said general election aforesaid as shown by the official tally sheets of the board ; and that in pursuance of such action by the canvassing board, and prior to the service of the alternative vvrit of mandamus upon the members thereof, a certificate of election was pre- pared by said board for issuance to James Wickersham as Delegate to Con- gress from Alaska for the term beginning March 5, 1917, but tliat before said certificate had been signed and issued by the board the members thereof were served with the writ of mandamus herein, and no further action has been taken looking to the issuance of said certificate of election pending the further order of tlie court herein ; " and wherein it was further stated that in the canvass of the returns from the voting precincts named in the alternative writ of mandamus herein and in the petition filed in this cause the returns from the voting precincts of Choggiung, Deering, Utica, Nushagak, and Bonnifield showed that there had not been any official ballots cast at said election, and that no certificate accompanied the returns from said precincts showing why nonofficial ballots were xised at said election ; and wherein it was further stated that as to the said precinct of Vault the election judges did not sign the certificate of result form in the back of the election register and tally book, but the canvassing board received from tlie clerk of the United States court for the fourth judicial division " the cer- tificate of clerk to election returns " ; and Whereas to said answer a demurrer was duly filed and duly argued and taken under advisement by the court, and afterwards, to wit, on the 20tfi day of March, 1917, the court announced its decision, to the effect that in comput- ing the number of votes to which each candidate was entitled it was the plain duty of the board under the law to reject — that is, not to count — the alleged votes from the said precincts aforesaid, which said votes aggregated, Wicker- sham 69 and Sulzer 19 (except Nizina), and to deduct the said 69 votes re- turned for Wickersham from said precincts and the said 19 votes returned for Sulzer from said precincts, respectively, from tfie number which the board had credited to each of the said two candidates as aforesaid ; and Whereas the defendants in said cause were given two days in which to amend their return to the said alternative writ, if they should so desire ; and Whereas the said two days expired at 12 o'clock midnight on the 22d of March and no amended return has been filed herein, and no further cause shown. why the alternative writ should not be made peremptory ; but on the contrary said defendants have filed herein their statement to the effect that they did not desire or intend to further appear herein ; and Whereas on this 23d day of March, 1917, plaintiff herein duly moved that the alternative writ herein be made peremptory for the reason that no sufficient cause has been shown to the contrary ; and Whereas the court is satisfied that the defendants do not desire or intend to- show any further cause, and doth now find from the records and files herein, that if the total number of votes to which the canvassing board has returned that James Wickersham is entitled to (to wit, 6490) and that Charles A. Sulzer is entitled to (to wit, 6459) should suffer a reduction of 69 and 19, respectively, it will clearly appear that Charles A. Sulzer has received the greatest number 13289—17 2 18 WiCKERSHAM VS. SULZEE. of votes for the office of Delegate to Congress from Alaska, and that he is en- titled to tlie certificate of election therefor ; and Whereas the court doth further find that with the exception of making the deduction aforesaid and of issuing said certificate said board has completed the canvas ; and Whereas the court, on motion of plaintiff this day made, has issued an order making said alternative writ peremptory ; Therefore, this is to command you, and each of you, that upon receipt of this ^^'rit of mandamus you do fortliwith convene as a canvassing board for the Ter- ritory of Alaska, and that you reject the votes from the said precincts of Choggiung, Deering, Nushagak, Utica, Bonnifield, and Vault, and that you issue a certificate of election to Charles A. Sulzer as having received the greatest number of votes for Delegate to Congress from Alaska, and that said certificate be in the usual form, as by law provided. And this you are in nowise to omit. Given under my hand and the seal of this court this 23d day of March. 1917. (Court Seal.) Robeet W. Jennings, Judge. That the said peremptory writ of mandamus was served upon each member of the said canvassing board on the said 23d day of March, 1917, commanding them and each of them to do the things mentioned therein. XIX. Ti'Jit t'ler^nfter and on March 24, 1917, the snid canvassing board, consisting of Hon. J. F. A. Strong, governor of Alaska; Hon. Charles E. Davidson, sur- Aeyor general of Alaska; and Hon. Charles F. Pugh, collector of customs for Alaska, each a member of the said canvassing board, met in the governor's office in regular session at the hour of 10 o'clock a. m. and thereupon the follow- ing proceedings were had and taken : United States of America, Territory of Alaska, ss: I, J. F. A. Strong, governor of the Territory of Alaska and chairman of the canvassing board, do hereby certify that the within is a full, true, and correct copy of tlie minutes of the Iward recording the transactions of said board on the 24th day of March, 1917, and of the whole of the transactions of said board on the said 24th day of March, A. D. 1917. ■ In testimony whereof I have hereunto set my hand this 24th dav of March, A. D. 1917. J. F. A. Strong, Governor of the Territory of Alaska and Ex Officio Chairman of the Board of Canvassers. " Governor's Office, ilarcli 2Ji, 1911. " The canvassing board met at 10 a. m. on this date in pursuance to a per- emptory writ of mandamus issued out of the district court, division No. 1, at Juneau, commanding the board to forth^^'ith convene as a canvassing board for the Territory of Alaska, and to reject the votes of Choggiung, Deering, Nusha- gak, Utica, JBonnifield, Vault, and the court has further found ' that with the exception of making the deduction aforesaid and of issuing said certificate, said board has completed the canvass.' The court commanding the board to issue a certificate of election to Charles A. Sulzer as having received the greatest num- ber of votes for Delegate to Congress from Alaska, and that the certificate be made in the usual form as by law provided. " Governor. The law provides no form of certificate and never has. The cer- tificate we have used has been simply one drawn up by this office. " Governor. The purpose of the meeting has been stated. What do you want to do about it? " Mr. Pugh. I move that we start to take off the tally sheets the vote for Delegate as indicated in the writ, namely, Choggiung, Deering, Nushagak, Utica, Bonnifield, Vault. " Mr. Davidson. Motion seconded. " Governor. It has been regularly moved and seconded that the tally sheets should be corrected to comply with the command of the court ; that is, the votes WICKERSHAM VS. SULZER. 19 so far as Delegate be eliminated. 69 votes should be deducted from Jas. Wickersham ; 19 votes should be deducted from Chas. A. Sulzer. " Mr. PuGH. I move that we issue certificate in the same form as we did two years ago. " Mr. Davidson. Motion seconded. " Governor. It has been regularly moved and seconded that this board do therefore issue a certificate of election to Charles A. Sulzer in accordance with the above peremptory writ of mandamus, and that also in accordance with the aforesaid writ of mandamus, the certificate be issued in the usual form. " Governor. It had better be stated that while the writ declares that the cer- tificate be in the usual form as by law provided, the law provides for no form. The form heretofore used has been one that was provided by the canvassing board. " Governor. All in favor of the motion say " aye." " Motion unanimously carried. " Go\'ernor. This peremptory writ of mandamus should be made a part of the records. " Mr. Davidson. I move that the peremptory Avrit, all other writs.- copies of all opinions and court decisions, together with all correspondence with refer- ence thereto, received by the board, be made a part of the records of this board. " Mr. PuGH. Motion seconded. " Governor. It is moved and seconded that the peremptory writ of mandamus issued out of the court for the District of Alaska, division No. 1, Juneau. March 2.3, together with all other writs, opinions, court decisions, and all cor- respondence relating thereto, be made a part of this record. All those in favor Avill say " aye." " Unanimously carried. " Mr. PuGH. I move that the board adjourn. " Mr. Davidson. Motion seconded. " Governor. It is moved and seconded that the board adjourn. All in favor will say " aye." " Unanimous that the board adjourn." That thereupon and on March 24, 1917, and not before, being coerced by the aforesaid peremptory writ of mandamus so issued and signed by the said Robert W. Jennings, the said canvassing board did make, sign, and deliver to the said Charles A. Sulzer. a certificate of election based upon the vote so cast for him and for this contestant on November 7, 1916. as hereinabove particu- larly set out and stated, all of which was in violation of law and without notice to this contestant, and thereafter and on April ,3. 1917, the said Charles A. Sulzer presented his said certificate to the House of Representatives in regular session and took the oath of office and ever since has acted and claimed to be the regularly elected and acting Delegate from Alaska in pursuance to the pro- ceedings in this petition set forth and not otherwise. XX.. Tliat wrongfully and intending to defraud this contestant of his right as the duly elected Delegate from Alaska in the Congress without notice or opportunity to appear and defend his right thereto the said Charles A. Sulzer brought said suit in said court in Alaska secretly and in the absence of this contestant from the Territory of Alaska, and during the time when this contestant was in attendance as Delegate from Alaska upon the regular session of the Sixtv- fourth Congress, in the city of Washington; that said Sulzer wrongfullv aiid intending to secure an unlawful advantage in said suit, and well knowing this contestant to be the real party in interest in said suit and a necessarv party thereto, brought his said suit against the members of the said canvassing board and unjustly and in violation of law refused to make this contestant a party to said suit or to give this contestant any notice of the pendency thereof or any opportunity to appear therein and to defend his right as the duly elected Dele- gate from Alaska in said suit ; and this contestant was not at any time made a party to the said suit and \\-as not n said Territory of Alaska at any time during the pendency thereof, and nei.'ier contestant nor any person for or representing him had notice thereof nor appeared therein; and the said pro- ceedings in said suit from its beginning to final judgment were had without any notice to or appearance by this contestant. 20 WICKEESHAM VS. SULZER, XXI. That said suit so brought by said Charles A. Sulzer, contestee herein, in said district court in Alaslia, first division, was brought before and heard in all its stages by Robert W. Jennings, judge of said court; that said Robert W. Jen- nings was a candidate for Delegate from Alaska in opposition to, this con- testant at the general election in the Territory of Alaska on August 13, 1912, and was defeated at the polls by a large majority ; that thereafter he was ap- pointed judge of said court ; that he is a bitter political partisan opponent of this contestant; that John F. Pugh, the collector of customs for Alaska^ and a member of said canvassing board, is the brother-in-law of said Robert W. Jennings, and also a bitter political opponent of this contestant ; that both said Jennings and said Pugh well knew at all the times when the said suit by said Sulzer against said canvassing board was pending that this contestant was a necessary and proper party in interest in said suit, but both wrongfully and intending to permit an unlawful and unjust advantage to be taken of this con- testant and to have his right to said office unlawfully taken from him in his absence, did all the matters and things done by them or either of them in said suit, well knowing that no notice had been given to this contestant of the pen- dency thereof, and well knowing that he, the said contestant, was then in attendance as Delegate from Alaska upon the then closing session of the Sixty- fourth Congress, of which contestant was a member as Delegate from Alaska. XXII. Contestant alleges that neither said district court for the district of Alaska, Division No. 1, as aforesaid, so presided over by Robert W. Jennings, as judge as aforesaid, nor the said Robert W. Jennings, as judge aforesaid, had or acquired any jurisdiction, power, or authority, either in equity or in law, in said cause, entitled " The Territory of Alaska, on the relation of Charles A. Sulzer, and Charles A. Sulzer, relator and plaintiff, v. The Canvassing Board for the Ter- ritory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants. No. 1593-A," in said court, or at all, to hear or determine the matters and things set forth and alleged in the pleadings filed therein, or to make or enforce any order, decree, or judgment therein, or to do any act or thing therein (except to dismiss said suit), for the reason that said pleadings therein and the record showed upon their face that said plead- ings did not state any cause of action entitling the relator and plaintiff to any relief or judgment, and did not state any cause of action against said canvass- ing board or any member thereof, and because it appeared on the face thereof that neither said canvassing board nor any member thereof was the real party in interest therein, or was a necessary or proper party thereto, and because it appeared on the face thereof that this contestant was the real party in interest in said suit, was a necessary, indispensable, and proper party thereto, and was not made a party thereto and had not been served with copy of the plaintiff's, petition nor served with notice of the pendency thereof, and had not voluntarily or otherwise appeared therein, and because it appeared upon the face of said pleadings and record that a fraud and a wrong was being purposely perpetrated upon the electors and citizens of Alaska and upon this contestant by bringing said suit without making this contestant a party thereto, intending thereby to procure a judgment therein determining this contestant's i-ight to said certifi- cate of election aforesaid without notice to him or an opportunity to him to be heard to defend and protect his and the public right to an honest election and a fair count, and because it appeared upon the face of said pleadings and record that the said Charles A. Sulzer had a plain, speedy, and adequate remedy at law afforded to him by the provisions of the various acts of Congress authorizing- the hearing and trial of contested election cases before the House of Representa- tives of the United States, and especially by the provisions of chapter 8, sec- tions 105-130, of the Revised Statutes of the United States, 1878, and subsequent amendments thereto. XXIII. That by the provisions of the said act of Congress entitled "An act providing for the election of a Delegate to the House of Representatives from the Terri- tory of Alaska," approved May 7, 1906 (34 Stat. L., 169), and by the seventeenth section of the act of Congress entitled "An act to create a legislative assembly in the Territory of Alaska, to confer legislative power thereon, and for other WICKERSHAM VS. SULZER. 21 purposes." approved August 24. 1912 (37 Stat. L., 512), the Coneress of the Lnited States established a full general plan and law for the election of said Delegate, by fixnig the date of said election, the qualifications of voters pro- viding tor election precincts, election officers, the method of voting, the form of ballots and returns, and the canvass and compilation of said returns the pav- ment of all expenses thereof, and generally provided au exclusive method of conducting such election, and tlie Territory of Alaska has not now and never had any power or authority to alter, amend, modify, or repeal the said laws. XXIV. That the Legislature of Alaska at its second session in 1915 passed an act entitled "An act to provide official ballots for elections in the Territorv of Alaska," approved by the governor of said Territory on April 27, 1915; that 'said act provides for the printing and use of ballots at all elections in said' Territory in compliance with its title, and in section 21 thereof it is provided : " Sec. 21. That in any precinct where the election has been legally called and no official ballots have been received, the voters are permitted to write or print their ballots, but the judges of election shall in this event certify to the facts which prevented the use of the official ballots, which -certificate must accompany and be made a part of the election returns." That the foregoing section is the law and the only law relied upon by the said Robert W. Jennings, judge of said district court aforesaid, as authority for making and issuing the said writ of mandamus by which he commanded and compelled the aforesaid canvassing board to reject, cast out, and fail to canvass and compile the said 69 votes so cast for this contestant in the said precincts of Choggiung, Deering, Nushagak, Utica, and Bonnifield, in said Territory, and which were so rejected from said canvass and compilation by said canvassing board under the coercive power of his said writ. XXV. That the members of the canvassing board aforesaid, after said suit was brought in said court by said Sulzer, and before said peremptory writ of mandamus was issued and served upon them, declared their purpose to apply the law so found and announced by said Robert W. Jennings, judge aforesaid, to all the returns so before them for canvass and compilation and declared their intention and purpose upon the decision of said judge to so correct and amend said canvass and compilation in accordance with the rule of law declared by him and enforced upon them by said writ, so as to apply the same rule alike to all returns before them for canvass and compilation ; and to apply to the returns from all other precincts the same rules as those applied to Chogginung, Deering, Nushagak, Utica, Bonnifield, and Vault, but said judge thereupon extended his said order of mandamus to prevent said uni- formity of the application of the said rules by providing in his said peremptory order of mandamus as follows : " Whereas the court doth further find that with the exception of making the deduction aforesaid and of issuing said certificate said board has com- pleted the canvass." Whereby the canvassing board was unlawfully and unjustly prevented from performing its duty and was prevented from fairly and lawfully correcting and amending the canvass and compilation in accordance with the rule of law so announced by said judge. XXVI. That the members of the canvassing board aforesaid, after said suit was brought in said court by said Sulzer, and before said peremptory writ of man- damus was issued and served upon them, declared their purpose to state the facts in the certificate of election issued to the successful candidate, and to recite the facts therein that the change of their canvass and compilation of the votes as shown upon their then official tally sheets was so made upon and in submission to the peremptory writ of mandamus if any was served upon them ; but said Robert W. Jennings, judge aforesaid, so unlawfully and un- justly extended his said order of mandamus to prevent said truthful statement in the following clause thereof: 22 WICKERSHAM VS. SULZER. " Therefore, this is to command you, and eacli of you, that upon receipt of this writ of mandamus you do forthwitli convene as a canvassing board for the Territory of Alaska, and that you reject tlie votes from tlie said precincts of Clioggiung, Deering, Nushagak, Utica, Bonnifield, and Vault, and that you issue a certificate of election to Charles A. Sulzer as having received the greatest number of votes for Delegate from Alaska, and that said certificate be in the usual form as by law provided " ; that the law does not provide any form for such certificate, and the said peremptory rule was unlawful and was so issued to hinder and prevent said canvassing board from reciting the truth and the facts in said certificate in explanation of their action in rejecting against their judgment the returns from said precincts. XXVII. That said Charles A. Sulzer, contestee herein, wronfully and with intent to defraud the electors of the Territory of Alaska of their right to elect a Delegate from Alaska to Congress, at said election as aforesaid, and to defraud this contestant of his right to the said certificate of election as aforesaid, purposely and fraudulently confined his attack and objection to the returns so pending bef.ore said canvassing board from the precincts of Choggiung, Deering, Nushagak, Utica, Bonnifield, and Vault, well knowing there were the same or similar defects in other precincts which returned majorities for him which if rejected under the same rule of law would reduce the total vote cast for him. said Sulzer, below that cast for this contestant and thereby result in the issuance of said certificate of election to this contestant; that in the XIV paragraph of his said petition to said court said Sulzer alleged: " That the returns from the aforesaid precinct of Vault are false, spurious, and illegal, in that said returns are not certified to as provided by law and in that no certificates of the result of the election in said precinct specifying the number of votes cast for each candidate accompanied or was included' in said returns, as required by section 402 of the Compiled Laws of Alaska ; " that contestant is informed and believes, and upon such information and belief alleges, that identical and similar defects existed in the returns from the pre- cincts of Juneau No. 1, Tokotna. and Loring, in said Territory, which returns the canvassing board canvassed and compiled under the rule applied by them to the aforesaid precinct of Vault ; that the returns from said precincts of Juneau No. 1, Tokotna, and Loring were and are false, spurious, and illegal, and in that said returns were and are not certified to as provided by law and in that no certificate of result of the election in said precinct specifying the number of votes cast for each candidate accompanied or was included in said returns, as required by section 402 of the Compiled Laws of Alaska ; that in the precinct of Loring said Sulzer received 26 votes and this contestant 2 votes, in the pre- cinct of Takotna said Sulzer received 24 votes and this contestant 13 votes, and in the Juneau No. 1 precinct said Sulzer received 435 votes and this contestant 247 votes ; that if said returns from Juneau No. 1 precinct, Tacotna and Loring precincts are rejected upon the same grounds as those in Vault precinct, and the same action of the court taken thereon the total vote cast for said Sulzer will* thereby be reduced below the total vote cast for this contestant ; all of which both said Sulzer and said Robert W. Jennings, judge, well knew ; and upon the declaration of said canvassing board of its purpose to apply the same ride to all returns alike in the correction of the canvass and compilation of said returns the said judge further extended his said writ and prohibited said board from doing so. XXVIII. That the said canvassing board was compelled by the said A^i-it of mandamus so made by said Robert W. Jennings, judge, to reject from said canvass and compilation the returns from Choggiung, Deering, Nushagak, Utica, and Bonni- field for the reason that otlier ballots were used in said precincts than those provided by the clerk of the court, as provided by law, and because no certifi- cate of the judges of election in each of said precincts certifying to tlie facts which prevented the use of the official ballots was made by said officers to accompany said returns as a part thereof ;this contestant is informed and believes and so alleges that the returns of said election from the precincts of Tokotna and Naknek, in said Territory, so pending before said canvassing board with the returns from Choggiung, Deering, Nushagak, Utica, and Bonni- field, showed that no official ballots had been used or cast in either said Tokotna or Naknek precincts at said elections, and said two returns were not either WICKEESHAM VS. SULZER. 23 accompanied by any certificates signed by the judges of election or anyone certifying the facts which prevented tlie use of said official ballots, and that no such certificate was made a part of said returns when so received, can- vassed, and compiled by said canvassing board; and that these facts were kiiov\'u to said Sulzer when he brought his said suit and by said judge when he made his order of mandamus : and said canvassing board after the bringing of said suit and before the service upon them of the peremptory writ of man- damus announced their purpose to apply the same rule of law"^ to all returns that was required by said judge to be applied to the precincts of Choggiung, Deering. Nushagak. Utica. and Bonnifield. and to amend and correct all the returns alike in submission to the courts statement of law and rule of amend- ment : that in the precincts of Takotna said Sulzer received 24 votes and this contestant but 13 votes, and in the precinct of Naknek said Sulzer received 9 \'otes and this contestant but 2 votes, and if said precincts had been objected to by said Sulzer and rejected under the court's order said Sulzer would not have hud tlie greatest number of all the votes cast at said election ; and to prevent the rejection of said votes said Sulzer omitted to mention them in his petition and to prevent the canvassing board from applying the same rule to them that the court applied to Choggiung, Deering. Nushagak, Utica, and Bonnifield, the said judge in his said writ of mandamus so unjustly and unlawfully extended it by including a clause therein prohibiting said canvass- ing board from further amending or correcting or rejecting the returns from said Tokotna and Xaknek precincts. XXIX. That at said election of November 7, 1916, in the second division of Alaska, Phil Corrigan and T. M. Reed were, respectively, candidates for election to the Territorial house of representatives, noAv in session in the capital at Juneau. Alaska ; at said election there were 768 votes cast for Phil Corrigan and 762 votes cast for T. M. Reed ; that in the said precinct of Utica there were 16 votes cast for Corrigan and but 4 votes cast for Reed ; it was and is the duty of the Territorial canvassing board aforesaid to canvass and compile the re- turns from Utica for members of the legislature in the same manner and by the same law as they are canvassed and compiled for the election of Delegate, and they are the same identical returns ; that the official -ballots did not r'each the said Utica precinct for use on election day, and the voters were permitted to write or print their ballots in accordance with the law ; but that the judges of election, as alleged in Sulzer's said petition and found by Robert W. Jen- nings, judge, in said peremptory writ when served, did not certify to the facts which prevented the use of the official ballots, and no such certificate accom- panied and was made part of the election returns ; that Corrigan received 16 votes in Utica precinct and Reed received 4 votes, and the votes in Utica pre- cinct would and did determine which. Corrigan or Reed, was elected ; the canvassing board canvassed and compiled said Utica precinct votes for Corri- gan and Reed, and by said votes Corrigan was declared elected and Reed defeated ; if said Utica votes had been rejected Corrigan would have had but 7.52 votes, while Reed would have had 758 votes, a greater number than Corri- gan and therefore elected ; that if the same rule applied to the canvass and compilation of said Utica precinct to reject them for contestant had been gen- erally applied the said Reed would have been elected to said legislature and not said Corrigan. XXX. That at said election of November 7. 1916. in the third division of Alaska, Joseph Murray and Tom Holland, were, respectively, candidates for election to the Territorial house of representatives, now in session in the capital at Juneau. Alnska ; at said election there were 1.250 votes cast for Murray and 1,242 votes for Holland; that in the precincts of Choggiung and Nushagak Mur- ray received 31 votes and Holland 10 ; that the returns canvassed and compiled by the canvassing board from said Choggiung and Nushagak precincts in respect to the said election of Murray and Holland, were the same identical returns \\-hich were rejected by virtue of the peremptory writ of mandamus issued by said Robert W. Jennings, by which this contestant was prevented from having said votes counted for him; and if the same rule applied under said writ to this contestants votes in said two precincts had been applied to said returns in the Murray-Holland returns, Holland would have been elected instead of Murray, who was declared electe^aid iirecincts were ordered to be rejected l)y s;!id Robert W. Jennings, judge, in the trial of said cause between Sulzer and liie lioard. though attached to the answer of tlie canvassing Iward to the alternative writ of man- damus. Gov. Strong and Surveyor Gen. Davidson alleged, in paragraph 3 of said answer, that they had lieen notified by telegraph on February 12. 1917, before the board had ceased to canvass and compile said returns, liy the clerk of the district court at Nome. Alaska, that certificates from judges of said elec- tions in said Deering and Utica showing why official ballots had not been used at said precincts at said election had been received liy him and were being forwarded to the canvassing l^oard : and contestant is now informed and alleger that said certificates have been received by the said members of the canvassing board in Juneau. Alaska, on April 4. 1917 ; that said returns fi-om said precincts were ordered to be rejected by said canvassing board by the said Robert W. Jennings, judge, in his said peremptory writ of mandamus, although he was advised that said certificates were then on their official way to said canvassing board. XXXV. That contestant is informed and believes, and so alleges, that the official bal- lots for the election to be held on November 7, 1916, in the Choggiung and Nushagak precincts were, with election blanks and other data required by chap- ter 25 of the Session Laws of Alaska. 1915. forwarded by the clerk of the court at Valdez, Alaska, in the regular United States mail, directed to the proper election officials in both Choggiung and Nushagak precincts in the month of September. 1916 : that said Choggiung and Nushagak precincts are on the shores of Bristol Bay : that the mail boat does not go regularly to Bristol Bay, and not at all after the date mentioned : that the mail for said precincts is landed at Cold Bay. on the south side of Alaska Peninsula, and carried overland across to said precincts by such carrier as comes along ; that said mail boat to that region only makes one trip a month, and that during the months of September, October, November, and December. 1916. the said mail boat did not land the mail at Cold Bay on account of bad weather; that said September mail was not so landed until January 12, 1917, and the official ballots for said Choggiung and Nushagak precincts did not reach said precincts at any time prior to November 7, 1916; that said election officers at said precincts did not receive the copy of the law of 1915 aforesaid, or the printed blanks and instructions so for- warded by said clerk, and without such official instructions they failed, through ignorance of the law, to inclose with the returns any certificates to the effect that the ballots so cast for Delegate from Alaska under the act of Congress of May 7, 1906. were used by reason of the fact that the Territorial official ballots had not been received ; that said Sulzer, contestee. had. prior to the close of navigation in Bristol Bay. forwarded certain sample ballots to said precincts, and in the absence of all other ballots electors voted said Sulzer's sample bal- lots, striking off the name of Sulzer and writing in the name of James Wicker- sham, this contestant, for Delegate from Alaska ; that no claim or charge of fraud in the use of said ballots was made to the canvassing board or to the said court which tried the said case of Sulzer v. The Canvassing Board, aforesaid, and it was a matter of public knowledge in that region that said ballots and election blanks had not and could not reach said Choggiung and Nushagak precincts in time for the election on November 7, 1916. Wherefore contestant prays the House of Representatives of the United States for the Sixty-fifth Congress to hear this contest and the evidence offered in support of it, and that contestant have a full and fair count of the votes cast for him as Delegate to Congress from Alaska, as aforesaid. That upon the final hearing the House of Representatives seat this contestant as such Delegate from Alaska in Congress, as of right and under the laws of the United States It ought to do. Dated Washington, D. C, April 10, 1917. James Wickersham. Contestant. 26 WICKERSHAM VS. SULZEB. United States of America, Washington, District of Columbia, ss: . ■James Wickersham, being duly sworn, says that he has read the foregoing petition by him subscribed and knows the contents thereof and that the same is truQ as he verily believes. James Wickeesham. Subscribed and sworn to before me this 10th day of April, 1917. [SEAL.] D. B. Mull, Notary Public for the District of Columbia. My commission expires May 1, 1918. United States or America. Washington, District of Columbia, ss: I, George A. Jeffery, an indifferent person, of Washington, D. C, being duly sworn, depose and say that on the 10th day ofr April, 1917, I served a true copy of the above and foregoing notice of contest and petition thereto attached on Charles A. Sulzer. the contestee named in the proceeding, by delivering to the said Charles A. Sulzer said true copy thereof at Washington, D. C. Geoege a. Jeffery. Subscribed and sworn to before me this 10th day of April, 1917. [SEAL.] D. B. Mull, Notary Public for the District of Columbia. My commission expires May 1, 1918. Answer to notice of contest. To the House of Representatives of the United States, Sixty-fifth Congress, First Session. Comes now Charles A. Sulzer, contestee, and makes the following answer to the petition of James Wickersham, contestant : I. . Said contestee admits the first allegation in the said petition that the people of the Territory of Alaska are entitled to chose a Delegate to the House of Representatives of the United States, as provided in the act of Congress en- titled "An act providing for the election of a Delegate to the House of Repre- sentatives from the Territory of Alaska," approved May 7, 1906 (34 Stat. L., 169), to be chosen by the people thereof in the manner and at the times pre- scribed by the laws of the United States and of the Territory of Alaska, and who shall be known as the Delegate from Alaska. II. Said contestee admits the second allegation in said petition that the said James Wickersham was a duly nominated candidate for the said office of Dele- gate from Alaska at the said general election held on the 7th day of November, 1916. Said contestee alleges that he also was a duly nominated candidate for the snid office of Delep; te from Ah sk • ■• t tlu^ general election held pursu;int to the statutes of the United States in the Territory of Alaska on the 7th day of November, 1916. Said contestee further alleges that upon the date of said elec- tion he was and for more than seven years prior thereto had been and he now is a native-born citizen of the United States, and was then and is now an inhabi- tant in and a qualified voter of the District of Alaska, and was not less than 25 years of age. III. Said contestee admits the third allegation in said petition that at the said general election so held in said Territory on said 7th day of November, 1916, there were three candidates for the said office of Delegate from Alaska: (1) James Wickersham, the contestant; (2) Charles A. Sulzer, the contestee; and (3) Lena Morrow Lewis. WICKERSHAM VS. SULZER. 27 Said contestee denies tlie fourtli allegation in said petition tliat tlie said con- testant received the greatest number of votes at tlie said election so held in tlie said Territory of Alaska on the said 7th day of November, 1916 ; denies that said contestant was thereby duly elected Delegate to Congress from the said Ter- ritory of Alaska ; and denies that said contestant is now eiititled to a seat as Delegate from Alaska in the House of Representatives in the Congress of the United States in the Sixty-fifth Congress now in session. Said contestee alleges in answer thereto that he received the greatest number of votes cast for any person or candidate for the office of Delegate from Alaska at the said election held on the said 7th day of November, 1916, and that he is thereby the duly qualified and elected Delegate from Alaska and entitled to his seat in the House of Representatives of the Congress of the United States as the said Delegate from Alaska in the Sixty-fifth Congress now in session. Said contestee further states that his election to the said office of Delegate from Alaska was duly cer- tified by the canvassing board of the Territory of Alaska after duly canvassing the total vote cast at said election, as was their duty under the law, and that he now holds his seat in the House of Representatives of the Congress of the United States, as said Delegate from Alaska, to which he was duly elected and said election duly certified as aforesaid. V. Said contestee denies the allegations contained in Section V of the said peti- tion and alleges in answer thereto that at the said election so held in said Terri- tory of Alaska on said 7th day of November. 1916, on the face of the returns of said election as canvassed by the canvassing board for the Territory of Alaska authorized and provided for by the twelfth section of the aforementioned act of Congress so approved May 7, 1906 (34 Stat. L., 173), the following vote was cast for James Wickersham, contestant, and for Charles A. Sulzer, contestee, and for said Lena Morrow Lev.is, respectively, to wit : For James Wickersham, con- testant, 6,414 votes; for Charles A. Sulzer, contestee, 6,43S votes; for Lena Morrow Lewis, 1,346 votes. VI. Said contestee. in answer to the sixth allegation in said contestant's petition, admits that the said canvassing board for the Territory of Alaska, as provided in section 12 of said act of Congress, approved May 7, 1906, consisted of Hon. J. F. A. Strong, governor of Alaska ; Hon. Cliarles E. Davidson, surveyor general of Alaska ; and Hon. John F. Pugh, the collector of customs for Alaska ; and said canvassing board met and organized as said canvassing board in the city of Juneaii, Alaska, at the public office of the governor, in the month of February, 1917, and from day to day met in session as said canvassing board ; but said contestee alleges that said canvassing board, in receiving, canvassing, nd compiling in writing the returns of election as received from the said election precincts in said Territory, in accordance with the several provisions of the laws of the United States, were about to count certain illegal, spurious, and fraudulent votes, and if these illegal, spurious, and fratidulent votes had been counted as legal votes contestant would have received the greatest number of votes cast for any person or candidate for the office of said Delegate from Alaska, and would have been elected ; but when these illegal, fraudulent, and spurious votes were rejected and not counted by the canvassing board, as was properly done after the legality of said votes had been passed on by the proper court in a proper legal proceeding, as is hereinafter described, and the official tally sheets made up by the said board were duly totaled and checked, the result showed that the contestee herein had received the greatest number of votes cast for any candidate, and was therefore elected to the said office, and thereupon the said board issued to the said contestee the certificate of election as required by law. vn. This contestee alleges, in answer to the seventh allegation in contestant's said petition, that the said alternative writ of mandamus was issued to prevent said board of canvassers from receiving and tabulating the said illegal, spurious, and fraudulent votes and the issuing to the contestant of the certificate of elec- tion to the said office of delegate from Alaska. 28 WICKEESHAM VS. SULZEE. VIII. I This coiitestee denies eacli unci every allegation contained in Section VIII of contestant's petitions. IX. This contestee admits the allegations contained in Section IX of said con- testant's petition. X. This contestee admits the facts in Section X of said contestant's petition as alleged, with this exception : In the ninth and tenth lines of said Section X of the said petition the words " official and authorized " should be " unofficial and unauthorized," so that the said section would then be as follows: "The ground stated in said petition as the basis for the relief demanded was that the election returns from the precincts of Choggiung, Deering, Nizina, Nushagak, Utica, Bonnifield, and Vault, in said Territory, were invalid and void for the failure of the election officers in said precincts to include and return witli said returns a certificate certifying the reasons why the one form of the official ballot was not received in said polling places and used at said election and why other ballots, also unofficial and unauthorized by law, were used in place thereof; that said petitioner, Sulzer, among other things in said petition, alleged that from the said returns of said election it appears that of the total vote cast in said Territory for the office of Delegate to Congress the relator and plaintiff, Charles A. Sulzer, received 6,438 votes, the said James Wickersham received 6,414 votes, and the said Lena Morrow Lewis received 1,346 votes ; and further alleged that thereupon it became the duty of the said canvassing board to issue a certificate of election, in accordance with said vote and returns, to the relator and plaintiff, Charles A. Sulzer, he being tlie person having received the highest number of votes, as sliown by said returns ; and further alleged that the said canvassing board has refused and is still refusing to issue said certificate of election to this relator and plaintiff, but, on the contrary, has threatened and announced their intention to disregard the legal election returns above referred to in determining to whom said certificate shall issue, and threaten and intend to count and canvass together with tlie returns aforesaid certain false, spurious, and illegal votes, which returns and votes if counted together with the legal returns of votes will change the result of the said election as hereinafter set forth ; and furtlier alleged that the false, spurious, and illegal votes and returns threatened to be counted consists of the false, spurious, and illegal votes from the following precincts of the Territory of Alaska, to wit : Choggiung : For James Wickersham 25 For Charles A. Sulzer 3 Deering : For James Wickersham 10 For Charles A. Sulzer 6 Nizina : For James Wickersham 7 For Charles A. Sulzer 2 Nushagak : For James Wickersham 10 For Charles A. Sulzer , 3 Utica : For James Wickersham 13 For Charles A. Sulzer 4 Bonnifield : For James Wickersham 3 For Charles A. Sulzer 1 Vault : For James Wickersham 8 For Charles A. Sulzer 2 And further alleged that in the precincts of Choggiung, Deering, Nizina, Utica, Nushagak, and Bonnifield the said vote was and is illegal, false, spurious in this : That the votes cast and threatened to be counted by the said canvassing board were not cast in accordance with law, in that the voters casting said ballots failed to use the form of official ballot prescribed by the laws of Alaska, and failed to use the official ballots prepared for said election according to the WICKERSHAM VS. SULZER. 29 laws of Alaska, but on the contrary, in casting said votes, used a form qt bal- lot either prepared by the voters themselves or by some person other than the person or persons authorized by law to prepare and provide said ballots ; and further alleged that the laws of Alaska provide as follows: "That in any pre- cinct wherethe election has' been legally called and no official ballots have been received, the voters are permitted to write or print their ballots, but the judges of election shall in this event certify to the facts which prevented the use of the official ballots, which certificate must accompany and be made a part of the election returns " ; and further alleged that in each of the precincts above re- ferred to where no official ballots were used, no certificate explaining the facts which prevented the use of the official ballot accompanied the returns ; and further alleged that in none of the precincts above enumerated where the official ballots were not used as aforesaid, were ihe election returns transmitted to the canvassing board accompanied by a certificate of the judges of election or of any other" person or persons whatsoevere certifying to the facts, if they were, Mdiich prevented the use of the official ballots, if the use of such ballots was in any manner prevented, but on the contrary, the ballots cast, if any were cast, in each of the precincts above enumerated, were returned to the election board without any certificate setting forth any facts which in anywise prevented the use of the official ballot ; and further alleged that the returns from the afore- said precint of Vault are false, spurious, and illegal in that said returns are not certified to as provided by law and in that no certificat of the result of the election in said precinct, specifying the number of votes cast for each candidate, accompanied or was included in said returns, as required by section 402 of the Compiled Laws of Alaska; and further alleged that if the aforesaid false, spurious, and illegal votes for the precinct aforesaid are counted and canvassed by the said canvassing board, together with the legal votes cast at said election, the total vote counted for Jam.es Wickersham will be 6,490 and the total vote cast for Charles A. Sulzer will be 6,459 ; and further alleged that the said can- vassing board do now threatent and intend, and will unless restrained by an order of this honorable court, to count and include said false, spurious, and illegal votes in compiling the totals from said election returns for the Territory of Alaska, and do now threaten and intend and will, unless restrained by this honorable court, issue a certificate of election to the said James Wickersham, based upon said false compilation of votes, notwithstanding that your relator and plaintiff herein received the highest number of votes cast at said election, and is entitled to said certificate of election ; and further alleged that the plain- tiff and relator has no plain, speedy, or adequate remedy in the ordinary course of the law, and will be deprived of a certificate of election entitling him to the office of Delegate to Congress for the Territory of Alaska, unless the court issue this return or mandate compelling the said canvassing board to reject and not count the returns from each and all of the foregoing precincts hereinbefore enumerated, and compelling the said canvassing board to issue to the relator and plaintiff herein its certificate certifying that he was duly and regularly elected to said office of Delegate to Congress ; and further, that the said can- vassing board threatens to and will perform and do each and all of the acts above stated before a hearing can be beard upon this petition, and will so proceed unless a temporary rule is issued by this honorable court empowering and restraining said canvassing board from so proceeding pending this litigation and until the matter can be heard upon its merits by this court ; whereupon the said Charles A. Sulzer prayed the court to issue its writ of mandamus directed to said canvassing board and each of the members thereof, commanding said canvassing board and each of the members thereof to reject and not count the alleged false, spurious, and illegal ballots therein referred to, and each and all of the same, and to reject the returns from said precincts where said ballots were cast, and to canvass and compile the votes cast in said election from the returns, legal and regular, which he claimed to be the only legal and regular returns, and issue the certificate of election to him, the said Charles A. Sulzer, and that they show cause before this honorable court on a day to be fixed by the court why they have not done so ; and that they then and there return this writ with their certificates annexed of having done as they are commanded or the cause of their omission thereof ; and the said petition also prayed for a temporary rule restraining the said board from proceeding to do the matters and things therein complained of, or any one or all of them, pending the final determination of this proceeding, and for such other and further relief as to the court may seem just and equitable ; that the said petition was signed by the said Charles A. Sulzer, verified by him, and by him filed in the aforesaid 30 WICKERSHAM VS. SULZER. district court for tlie Territory of Alaslca, first division, on said March 2. 1917, and service of a copy tliereof was made upon eacli of tlie members of tlie said canvassing board on said date. Tliis contestee, furtlier answering tlie tenth section of said contestant's petition, states tliat the said canvassing board secured tlie opinion in writing of the Territorial counsel for the Territory of Alaska with reference to *lie counting or rejecting of the said false, spurious, and illegal votes, and a copy of said opinion is made a part hereof, attached hereto, and marked " Exhibit A" ; that the final action of said canvassing board in issuing the certificate of election aforesaid to this contestee was in full accord and in compliance with the law as set out in the said opinion of the said Territorial counsel. This contestee, further answ^ering said section 10 of the said contestant's petition, submits herewith, makes a part hereof, and attaches hereto a copy of the proceeding entitled " The Territory of Alaska on the rela- tion of Charles A. Sulzer and Charles A. Sulzer, relator and plaintiff," duly certified by the clerk of the district court for the Territory of Alaska, first division, and marked " Exhibit B," but which contains only the opinion of the judge of said court in said proceeding. XI, XII, XIII, XIV. This contestee, answering Sections XI, XII, XIII, and XIV of contestant's said petition, admits the allegations contained therein. XV. This contestee answering Section XV of contestant's said petition, denie.s that the said camassing board on March 21, 1917, or on any other date or at any other time, filed a supplemental answer in the said district court of the Territory of Alaska, in the cause herein described. l)ut alleges that the said canvassing board filed a communication with the said court, in which it was set forth that a protest had been filed with the said canvassing board by one Emery Valentine protesting against the receiving and counting of certain precincts not herein specified, on account of alleged irregularities in said votes ; said board in said communication asked said court to instruct them v,'hat disposition to make of the said protest ; Robert W. Jennings, judge of s;nd court, replied promptly in writing to said communication from said Ijoard, stating that it would be improper for the court to give them advice in the premises but that the said court would, if the said board so desired, treat and receive the said communication as an amended and supplemental answer in the cause aforesaid, then pending before said court ; the said canvassing board replied thereto that it was not their desire that their said communication be received and treated by said court as a supplemental answer in the said cause. This contestee further states that the paper presented to the said canvassing board by the said Valentine was a letter of protest simply, unsupported by affidavit or by any other proof whatsoever of any irregularity or wrongdoing in said unnamed precincts ; that the returns fi'oni said unnamed precincts had already been received, tabulated, and counted by said canvass- ing board ; that none of the said votes so protested by said Valentine were involved in any way whatsoever in the said cause then pending in said court, to which the said can^'assing board were parties; that the attempt of the contestant to give credence to the said unsupported statement of said Emery Valentine, when he well knew the facts, ^^-as done with a deliberate intent to create the belief that the said unsupported statement was such that it should have been acted upon by said canvassing board and that the said court by not accepting said unsupported statement as a basis of a supplemtal answer in the said cause then pending before said court, acted unjustly and unfairly toward said contestant ; this contestee further alleges that the said court in the said mandamus proceedings showed, in every way possible, his disposition to act justly and fairly to all the parties thereto and to the contestant, as the proceedings and records in said cause fully demonstrate. This contestee. further answering said Section XV of said petition, denies each and every other allegation contained therein. XVI, XVII. This contestee. answering Sections XVI and XVII of contestant's said peti- tion, admits the allegations contained therein. WICKERSHAM VS. SULZEE. 31 XVIII. This contestee, answering Section XVIII of contestant's said petition, admits the linding of said court, as tlierein stated, and tlie service of tlie said peremptory writ on tlie said canvassing board at tlie time and in the manner srated, but denies each and every other allegation contained in said section. XIX. Thi-^ contestee, answering Section XIX of contestant's said petition, admits that the said canvassing board issued the said certificate of election to Charles A. Sulzer, this contestee. in obedience to the order of said court and as the . result of the canvass and compilation of che votes cast in said election from the legal and regular returns made by the said board. This contestee denies each and every other allegr.tion contained in said section. XX This contestee, answering Section XX of contestant's said petition, denies each and every allegation contained m said section. XXI. This contestee, answering Section XXI of contestant's said petition, admits th:!t the said Robert W. Jennings was a candidate for Congress in 1912 and that he is a brother-in-law of said John F. Pugh and denies each and every lather allegation in said section; aii.I further states th-U the said proceeding for mar.dcunus was l)i-(iught against the proper party, the said canvassing board; that the said James V\'ickersham was not a p,'iain could have been better represented it' he had been a party to the .>aid jn'oceeding. XXII. This contestee, ansvs-erinf;: Sectictn X7vII of contestant's said petition, denies each anil every allegation contained therein au'l further states that the said district court for Alaska, first division, presided over by said Robert W. Jen- nings, judge, bad full and complete j'li-i-diction to hear and determine the matter submitted to the said court, and th't i"he ;lerrees and iu'lgments of the said court were binding on the narties defendant, the canvassing board afore- said. XXIII. This contestee. ansv.ering Section XXIII of contestant's said petition, admits the passa.se of the said acts of Congress referred, to, approved, respectively, on May 7, 19(»6. and Ahgust 24. 1912, and denies each and every other allegation contained in said section: and alleges further that the said act of Congress approved August 24, 1912, pr(.)vided " tliat all the laws of the United States hei'e- tofore passed establishing the executive and judicial departments in Alaska shall continue in full force and effect until amended or repealed by act of Con- gress ; that except as herein provided all laws now in force in Alaska shall con- tinue in full force and effect until altered, amended, or repealed by Congress or by the legislature ;" that said law was amended by act of the legislature of the Territory of Alaska on April 27, 1915, under the authority given it by the said act of Congress approved August 24, 1912. XXIV. This contestee, answering Section XXIV of contestant's said petition, admits the allegations contained therein and further alleges that under the laws of the Territory of Alaska as stated in section 24 of said petition the votes of the. said precincts of Choggiung, Deering, Nushagak, Utica, and Bonnifield, in the said Territory of Alaska, were propeFly rejected and not counted by said canvassing board. 32 WIOKERSHAM VS. SULZEE. XXV. This contestee, answering Section XXV of contestant's said petition, admits; the truth of the said decision of tlie said court contained therein, and denies each and every otlier allegation in said section. XXVI. This contestee. answering Section XXVI of contestant's said petition denies every allegation therein excepting the statement of the said court's decision therein referred to, which he admits. XXVII. This contestee, answering Section XXVII of contestant's said petition, denies each and every allegation therein excepting that part of said section which quotes from the 14th paragraph of the petition of said Charles A. Sulzer, con- testee, to the said district court of the Territory of Alaska as aforesaid. XVIII. This contestee, answering section XXVIII of contestant's said petition, denies each and every allegation contained therein. XXIX, XXX. This contestee, answering Sections XXIX and XXX of contestant's said petition, denies each and every allegation contained therein, and, answering further, states that if said statements in said sections were true they would be wholly immaterial, irrelevant, and improper allegations so far as the election contest at issue is concerned. XXXI, XXXII. This contestee. answering Sections XXXI and XXXII of contestant's said petition, states that he has not sufficient knowledge at this time to form an opinion and belief as to whether soldiers voted at Eagle and Fort Gibbon pre- cincts, in the Territory of Alaska, in the election aforesaid, but alleges that there is nothing in the laws of the Territoi*y of Alaska or of the United States to prevent a soldier from voting simply because he is a soldier if he is otherwise qualified to vote. XXXIII. This contestee. answering Section XXXIII of contestant's said petition, ad- mits the law as stated in said section and denies each and every other allega- tion contained therein. XXXIV, XXXV. This contestee, answering Sections XXXIV and XXXV of contestant's said petition, denies that certificates showing why the official ballots were not used in certain precincts in the election aforesaid in the Territory of Alaska, as required by the laAvs of the Territory of Alaska, received on April 4, 1917, nearly five months after the said election, should in any way affect the relative rights of contestant and this contestee, because they show no compliance M'ith said law of the said Territory of Alaska, which requires that such certificates should accompany the returns of the election when certified to the canvassing board aforesaid ; further answering said Sections XXXIV and XXXV of said petition, this contestee denies each and every other allegation contained in said sections. 1. This contestee, further answering contestant's said petition, states that he is informed and verily believes that at the voting precinct in the town of Ketchikan, Territory of Alaska, at the aforesaid election, John F. Chamberlain and .loseph Meherin and divers other citizens, whose names are unknown to this contestee, at least 12 in number, were unjustly, improperly, and illegally denied the right to vote by the election officials at the said voting precinct in the town of Ketchi- kan, because they did not live within the corporate limits of said town ; that these persons who attempted to vote at said election at said voting precinct in WICKEESHAM VS. SULZEE. 33 % said town were all citizens of tlie first judicial division of the Territory of Alaska and had resided within said first division for more than one year prior to their said attempt to vote at said election and were duly qualified to vote at said voting precinct, in said towh, at said election held on November 7, 1916; said persons intended to vote, and would have cast their ballots for Charles A. Sulzer, this contestee, for Delegate from Alaslia to the Congress of the United States at said election if they had not been unjustly and unlawfully denied the right to vote as aforesaid. 2. That at the voting precinct of Craig, in the Territory of Alaska, he is informed and verily believes, that Charles Demmert, Mrs. Charles Demmert, Peratovich brothers, and more than 30 other fully qualified voters, whose names are to him unknown, were unjustly, improperly, and illegally denied the right to vote at said voting precinct at said election held on November 7, 1916, by the election officials at said voting precinct of Craig ; that the said qualified voters were not permitted to register and were denied the right to vote at said election at the instance of partisan supporters of the contestant, James Wickersham ; that this contestee is informed and verily believes that these said persons thus fraudu- lently and wronfuUy denied the right to vote at said election were refused siTch right because they were friends of this contestee, Charles A. Sulzer, and would have cast their votes for him if they had been permitted to vote at said election. That this contestee is informed and verily believes that the several judges of election aioresaid at the voting precincts of Bonanza,- Granite, and Fidalgo, in the Territory of Alaska, were not sworn to perform their official duties as judges of said election at said voting precinct as required by the laws of the Territory of Alaska ; that they were not qualified to sit as judges in the said election held November 7, 1916, and that the alleged election held at each of said voting precincts of Bonanza, Granite, and Fidalgo on November 7, 1916, was illegal and void and that the election returns from each of said precincts of Bonanza, Granite, and Fidalgo were suprious and illegal and should be excluded from the tabulation and count as made by the said canvassing board. That this contestee is informed and verily believes that Louis Klposh and divers other persons to him unknown, who were not residents of the third judicial division of the Territory of Alaska, were unlawfully and fraudulently permitted by the election officials at the voting precinct at Sourdough, in the Territory of Alaska, in said third judicial division, to cast their votes at said voting precinct, at said election held on November 7, 1916, and their votes so unlawfully and fraudulently cast were certified to the said canvassing board by the said election officials at the said voting precinct of Sourdough, and were received, counted, and tabulated by said canvassing board ; this contestee is further informed and verily believes that said votes so illegally and fraudu- lently cast at said voting precinct at said election were tabulated and counted by said canvassing board in favor of the contestant, James Wickersham ; and that said votes so illegally and fraudulently cast at said voting precinct at said election should be rejected and not counted and not considered as a part of the election returns from the said voting precinct at Sourdough at the said election held on November 7, 1916. 5. That this contestee is informed and verily believes that at the voting precinct at Afognak, in said Territory of Alaska, at the said election held on November 7, 1916, there were more than 30 fraudulent and unlawful votes cast by persons wlio were not qualified to vote at said precinct at said election; that the elec- tion officials at said voting precinct at Afognak accepted said fraudulent and unlawful votes and included them in the election returns made by said election officials from said voting precinct to the said canvassing board and that they were received, counted, and tabulated by said board ; that said votes so illegally and fraudulently cast at said voting precinct at Afognack at said election were 13289—17 3 34 WICKEESHAM VS. SULZER. tabulated and counted by said canvassing board in favor of this contestant, James Wickersham ; that all of said illegal and fraudulent votes should be excluded from, and not counted with the ejection returns from said voting precinct at Afognak, or that the entire vote of the said precinct at said election should be excluded and not counted because of said illegality and fraud at said voting precinct. 6. Tbat this contestee is informed and verily believes that at the Seldovia voting precinct, in the Territory of Alaska, at the said election held on November 7, 1916, more than 30 illegal and fraudulent votes were cast by persons who were not legally qualified or entitled to vote at said precinct at said election, and said illegal and fraudulent votes were wrongfully and unlawfully accepted by the election officials at said voting precinct of Seldovia and were included in the return made by the said election officials of the vote at said voting precinct at said election, to the canvassing board aforesaid, and were received, tabulated and counted by said board ; that said votes so illegally and fraudu- lently cast at said Seldovia voting precinct at said election were cast in favor of the contestant, .Tames Wickersham ; that all of said illegal and fraudulent votes should be excluded from, and not counted with, the election returns from said voting precinct of Seldovia, or that the entire vote of said precinct at said elec- tion should be excluded, and not counted, because of said illegality and fraud at said voting precinct. 7. That this contestee is informed and verily believes that at the Unalakleet voting precinct, in the Territory of Alaska, at the said election held November 7, 191G, more than 20 illegal and fraudulent votes were cast by persons who Avere not legally qualified and entitled to vote at said voting precinct at said election ; that the election officials at the said Unalakleet voting precinct wrong- fully accepted said fraudulent and unlawfiil votes and included them in the election returns made by said election officials from said voting precinct to the canvassing board aforesaid and that the said fraudulent and unlawful votes were received, counted, and tabulated by the said board ; that all of said votes so illegally and fraudulently cast at said Unalakleet voting precinct at said election were cast for the contestant, .Tames Wickersham ; that all of said illegal and fraudulent votes should be excluded from, and not counted with, the election returns from said Unalakleet voting precinct, or that the entire vote of said voting precinct should be excluded, and not counted, because of the illegality and fraud at said voting precinct. That this contestee is informed and verily believes that the poll books at the Nizina voting precinct, in the Territory of Alaska, at the said election held on November 7, 1916, were wrongfully and illegally turned over by the election officials at said voting precinct at said election to certain campaign managers of .Tames Wickersham, contestant, after said election and were opened and held by said campaign managers for several days before they were sent to the canvassing board aforesaid, all in plain violation of the laws of the Territory of Alaska ; that this contestee avers and believes that the entire vote of said voting precinct at Nizina at said election should be excluded from, and not counted with, the returns made to the said canvassing board because of the illegal disposition of the said poll books as aforesaid. 9. That this contestee is informed and verily believes that at the first voting pi'ecinct (or eastern precinct) in the town of Anchorage, in the Territory of Alaska, at the said election, held on the 7th day of November, 1916, the election officials permitted one Mr. Lynch, an active and partisan supporter of .Tames Wickersham. contestant, in the election aforesaid, and who was not an election official, to remain in the voting booths at said voting precinct during said elec- tion and consult with and advise the voters in plain violation of the laws of the Territory of Alaska. WICKEESHAM VS. SULZER. 35 % 10. That this contestee is informed and verily believes that at Upper Cleary voting precinct, in the Territory of Alaska, at the said election held November 7, 1916, the election officials unlawfully, wrongfully, and fraudulently permitted voters to take their ballots outside of the building where the said election was being held in said voting precinct, and mark them, which proceeding was in plain violation of the laws of the Territory of Alaska. 11. That this contestee is informed and verily believes that the election judges at the Richardson voting precinct, in the Territory of Alaska, at the said elec- tion, held on November 7, 1916, permitted the ballot boxes containing the ballots cast in said voting precinct, at said election, to be taken out of their control and custody and unlawfully, wrongfully, and fraudulently permitted them to be in the possession of, and to remain in the custody of, certain persons who were not election officials and who were not the le^al custodians of said ballot boxes, and could not be, but held them in plain violation of the laws of the Territory of Alaska . 12. That this contestee is informed and verily believes that in the second judicial district of the Territory of Alaska, the registration law of the Territory of Alaska was wholly disregarded, and voters were permitted to cast their votes at said election without first registering as voters, as required by said registration law ; that the returns of the said election show that the contestant, James Wick- ersham, received a comparatively better vote and larger plurality in the said second judicial division than in any other judicial division of the Territory of Alaska ; that contestant received a much larger vote at said election in the said second judicial division than he did in the election held in November, 1914, when he was a duly nominated candidate for Delegate from Alaska ; that this condition was brought about, this contestee is informed and verily believes, by illegal and fraudulent voting permitted by the election officials at said election held on November 7, 1916, in the various voting precincts in the said second judicial division of the Territory of Alaska. 13. ' This contestee, now having fully and completely answered the petition afore- said of the contestant, .James Wickersham, says that he was fairly, legally, and duly elected Delegate from Alaska to the Congress of the United States at the election aforesaid held in the Territory of Alaska on November 7, 1916 ; that he received the greatest number of votes at said election cast for any person or candidate for the said office of Delegate from Alaska ; that his majority vote was larger than that found and reported by the said canvassing board for Alaska aforesaid ; that this contestee is informed and verily believes that at various voting precincts in the said Territory of Alaska at said election held on November 7, 1916, there were illegal and fraudulent votes cast by divers persons •to him unknown, and that said illegal and fraudulent votes cast at said election were cast for James Wickersham, the contestant ; that this contestee is informed and verily believes that divers persons cast their votes at various precincts in the Territory of Alaska at the said election who were not legally qualified or entitled to vote, and that said votes of said divers persons were received and counted for James Wickersham, the contestant ; that this contestee is informed and verily believes that at various precincts in the said Territory of Alaska at said elections divers persons, to him unknown, who were legally qualified and entitled to vote presented themselves to the election officials at said various voting precincts and attempted to vote at said election and were illegally, wrongfully, and fraudulently prohibited and prevented from voting as aforesaid by said election officials nt said various voting precincts; and if these said divers persons had not been illegally, wrongfully, and fradulently prohibited and prevented from voting as aforesaid, their ballots would have been cast for this contestee, Charles A. Sulzer ; that this contestee is entitled to retain his seat in the House of Representatives of the Congress of the United States as the Dele- gate from Alaska, to which office he was duly and illegally elected, and his said election duly certified by the proper officials of the Territory of Alaska, and this 36 WICKERSHAM VS. SULZER. contestee prays the said House of Representatives to pass a resolution declaring^ that he was duly and legally elected as aforesaid and is the Delegate from Alaska to the Sixty-fifth Congress and is entitled to the seat therein which he now occupies as aforesaid. Dated Washington, D. C, April 9, 1917. Chas. a. Sulzer, Contestee. United States of America, District of Cohimbia, ss: Charles A. Sulzer, being duly sworn, says that he has read the foregoing; answer and petition by him subscribed and knows the contents thereof, and that the same is true as he verily believes. Chas. A. Sulzer. Subscribed and sworn to before me this 9th day of April, 1917. Sebe Newman, Notary Public. My commission expires September 4, 1917. CONTESTANTS REPLY AND ANSWER TO CROSS-PETITION IN CONTEST. Comes now James Wickersham, contestant, and makes the following reply- to the answer of Charles A. Sulzer, contestee, in the above entitled contest. For reply to that part of said answer contained in paragraphs Nos. I tO' XXXV therein, both and all inclusive, contestant says that except as it is- alleged or stated in contestant's petition or reply contestant denies each and every allegation of new matter alleged in the contestee's answer to the said allegations contained in contestant's petition. And for reply and answer to the separate and affirmative defense set forth; in contestee's answer and cross-petition in the paragraphs 1 to 13 thereof,, both and all inclusive, this contestant says : Contestant denies that he has any knowledge or information sufficient to- enable him to form a belief of the truth of or to admit the allegations contained' in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of said separate and affirma- tive defense and cross petition, and he therefore denies each and every allegation therein contained 'and the whole thereof. II. For reply and answer to the allegations contained in paragraph 13 of said separate and affirmative defense in said answer and cross petition this con- testant admits and alleges that at various voting precincts in said Territory of Alaska, at said election held on November 7, 1916, there were illegal and fraudulent votes cast by divers persons to this contestant unknown, but con- testant denies that said illegal and fraudulent votes so cast at said election were cast for James Wickersham, this contestant, and alleges the truth to be that said illegal and fraudulent votes were cast for Charles A. Sulzer, the con- testee ; and this contestant alleges that said illegal and fraudulent votes were so cast in the precincts of Craig, Juneau No. 1, No. 2, and No. 3, Kake, Ketchi- kan, Loring, Petersburg, and Sulzer precincts in the said first division ; in St. Michael No. 1 and St. Michael No. 2 precincts in said second division ; in. Anchorage No. 1, Bonanza, Chignik, Jumbo, Latouche, Naknek, Ninilchick, Ouzinkie, and Valdez in the said third division ; and in the precincts of Fort. Gibbon, Fairbanks, and Eagle in the fourth division ; that upon information and belief contentant alleges that more than 50 such, illegal and fraudulent votes were so cast in said precincts for said Sulzer and were so counted in the returns and canvassed and compiled for said Sulzer by the said canvassing- board ; that this contestant admits the allegations that divers and more than 25 persons cast their votes in the above-named precincts at said election who^ were not legally qualified or entitled to vote, but denies that said votes, or any WICKEESHAM VS. SULZER. 37 I of them, were received find counted for James Wickersham, this contestant, hut upon information and belief alleges that all of said votes were so cast for the said Sulzer and were returned, canvassed, and compiled for said Sulzer by the said returning board ; that this contestant admits and alleges that divers and more than 25 persons in the above-named precincts, who were legally qualified and entitled to vote, presented themselves to the election officials at said various voting precincts and attempted to vote at said election, and were illegally, wrongfully, and fraudulently prohibited and prevented from voting as aforesaid by said election officers of said precincts at said various voting precincts, and if these said divers persons had not been illegally, wrongfully, and fraudulently prohibited and prevented from voting as aforesaid their "ballots would have been cast for this contestant, James Wickersham ; and con- testant denies that any such persons were so prohibited or prevented from TOting for said Charles A. Sulzer, the contestee, as alleged in said paragraph, and this contestant denies each and every allegation in said paragraph 13, except as the same is admitted and alleged in this his reply thereto. And for a further reply and answer to the matters and things alleged in the contestee's separate and affirmative reply and cross petition and in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 thereof, this contestant alleges; I. That at the time of the said election for Delegate in Alaska so held on November 7, 1916, and for more than two years prior thereto Hon. Robert W. Jennings was the duly appointed, confirmed, and acting judge of the district court of Alaska, in division No. 1, thereof ; Hon. John Randolph Tucker was the duly appointed, confirmed, and acting juge of the district court of Alaska in division No. 2 thereof; Hon. Fred M. Brown was the duly appointed, con- firmed, and acting juge of the district court of Alaska in division No. 3 thereof ; and Hon. Charles E. Bunnell was the duly appointed, confirmed, and acting judge of the district court of Alaska in division No. 4 thereof; and there were none otlier ; that it is the duty of said district judges to appoint, and at pleasure remove, commissioners in and for the district and each of said judges did prior to said election so appoint a commissioner in each precinct in said Territory within the division in which the said judge held his said court, ana said judge had the power at his pleasure to remove said commissioners at any lime ; that under the provisions of the act of Congress entitled "An act providing lor the election of a Delegate to the House of Representatives from the Territory of Alaska " approved May 7, 1906, and by section 5 thereof it was made the duty of each of said precinct commissioners at least 60 days before the date of said election on November 7, 1916, by order and notice entered in his records, to divide his recording and election district into such number of voting pre- cincts as may in his judgment be necessai*y or convenient, to specify a polling place therein, and to give notice of the holding of said election, and " That at least 30 days prior to the date of the holding of such election the commissioner shall select, notify, and appoint from among the qualified elec- tors in each voting precinct three judges of election for said precinct, no more than two of whom shall be of the same political party." The commissioner is required to notify such election judges of their ap- pointments. The said act, section 6, provides that the said judges of election of each voting precinct so appointed shall constitute the election board for said precinct, and a majority of said judges shall govern; that two of said judges shall act as clerks of election, and the law^ provides that one set of the precinct return of said election shall be forwarded by said judges of election to the clerk of the district court for the division in which the precinct is situ- ate and the other to the governor of Alaska. That in pursuance of the law aforesaid each of said judges of the district court had the power to and did appoint the said clerk of the court in the division in which he so held court. That in pursuance of said statutes the said district judges aforesaid had prior to said election so appointed each commissioner aforesaid in his respec- tive division, and each said commissioner did appoint the said judges of election as aforesaid and the returns of said election in each and all said precincts in Alaska were so made by said election judges to said clei-k of the court and governor. That the canvassing board in said Territory was composed of said governor, surveyor general, and collector of customs. That the said governor of Alaska, the surveyor general and collector of cus- toms, so comprising said canvassing board, the said four judges of the district court of Alaska, and said four clerks of court, were at all the times mentioned 38 WICKERSHAM VS. SULZEE. in this reply Democrats and partisans and supporters of s.aid Sulzer ; tliat in each precinct the said Democratic district judges appointed two Democrats and either a Republican or a Socialist as the three election judges and clerks of said election in said precincts, and thereby the whole election machinery in the conduct of said election of November 7, 1916, in said Territory so com- plained about by said Sulzer in his answer was in every detail and at every point controlled and managed by the friends, partisans and supporters of said Sulzer, and not otherwise; that neither this contestant nor his friends and sup- porters had any part or control in the conduct and management of said elec- tion ; that if there were frauds or illegal acts committed in said election as set forth in said Sulzer's answer they were done and performed by the said ap- pointed friends, partisans, and supporters of said Sulzer, for his benefit and not otherwise. Wherefore contestant prays for the relief demanded in his petition and to which he is by law and justice entitled. James Wickersham (In propria persona). United States of America, District of ColumMa, ss: James AVickersham, being first duly sworn, says that he has read the fore- going reply and answer to the answer and petition of said Sulzer so by him subscribed, knows the contents thereof and that the same is true as he verily _ believes. James Wickersham. Subscribed and sworn to before me this 12th day of May, 1917. [seal.] D. B. Mull, Notary Public in and for the District of ColuniM(i. My commission expires May 1, 1918. CONTESTEE'S ANSWER TO CONTESTANTS REPLY. Comes now Charles A. Sulzer, contestee, and makes the following answer to the reply of James Wickersham, contestant, in above-entitled contest. 1. This contestee, answering said contestant's reply, denies each and every allegation contained therein. 2. This contestee, in further answer to contestant's said replj', states that he has been informed and verily believes that the persons who acted as judges of election at the following-named voting precincts in the Territory of Alaska were not SAVorn to perform the duties of their several official positions, as required by law, at the election held in the Territory of Alaska on the 7th d;iy of Novem- ber, 1916, for the purpose, amongst other things, of electing a Delegate from the Territory of Alaska to the House of Representatives of the Congress of the United States : Cliff, Granite, Candle, Cape Nome, Kobuk, Koyuk, Nome No. 1, Nome No. 2, Nome No. 3, Chiuik, Port Clarence, Shelton, Solomon. Taylor Creek, Anchorage No. 2, Charcoal Point, Eagle (Juneau recording district), Hope, Cripple, McGrath, Bonanza (White River recording district), Kasaan ; and alleges that the elections at the said several precincts were illegal and fraudulent, and that the elections at the said several precincts were illegal and fraudulent, and that the election returns made from these several election pre- cincts named above to the canvassing board for the Territory of Alaska should be excluded and not counted by said board. This contestee, further answering said reply made by the contestant, states that he has recently been informed and that he verily believes that at each of the following-named voting precincts in the Territory of Alaska at the election held as aforesaid one or more of the judges appointed to act at said election failed to take the oath as required by law : Cache Creek, Landlock, McDougall, Nizina, Teikel (Chitina recording precinct), Teikhell (Valdez recording dis- WICKEESHAM VS. SULZEE. 39 % triot). Willow Creek, Afognak, Spruce Creek, Salchaket, Upper Cleary, AVood- chopper (Hot Springs recording district), Ester, Fish Creek, Lower Goldstreani, INIoutli of Crooked, Bettles, Deadwood, Kenai. jMeudenhall, Haines, Seldovia, Bonanza (White River recording precinct), and alleges that the elections so held at the said several precincts at said election were illegal and fraudulent, and that the election returns made from these said several precincts to the raid canvassing board should he excluded and not counted by said boai'd. 4. This contestee. now having fully answered tlie allegations of the contestant in the a))Ove-entitled contest, asks that the House of Representatives shall grant the prayer in this contestee's answer to the petition of the contestant. Dated May 16. 1917. Chas. a. Sxtlzkr. United States of Ameeica, District, of Colnmhia, s.s.- Charles A. Sulzer, being duly sworn, said that he had read the foregoing answer, knows the contents thereof, that the same is true, as he verily believes. Chas. A. Sulzer. Subscribed and sworn to before me this 16th day of INIay, 1917, [seal.] D- B. Mull, Notary Public. ceetificate of notary public. United States of Ajierica, Territory of Alaska, ss: I. Grover C. Winn, the notary public nnmed in the hereunto-attached notice to take depositions, do hereby certify that on the day and hour named in the notice, to wit, 10 o'clock a. m. on the 24th day of July, 1917, appeared in my office at Juneau, Alaska, Messrs. Hellenthal & Hellenthsil and John R. Winn, counsel for Charles A. Sulzer, contestee. in the contest pending before the House of Representatives of the United States between James Wickershani, contestant, and Charles A. Sulzer. contestee. and then and there also appeared John H. Cobb as attorney and counselor for James Wickersham, the contestant in said contest proceeding. That then and there counsel for the respective parties entered into the stipulation hereunto annexed, and thereupon proceeded to the examination of witnesses : whereupon AV. ^Y. Shorthill was called as a witness by the contestee. Avho, being first duly sworn on oath by me to tell the truth.' the whole truth, and nothing but the truth, testified in answer to questions- as in the hereunto attached deposition appears; and the said AV. AV. Shorthill having so testified, and having been examined by counsel for the con- testee and cross-examined by counsel for the contestant, as appears by the hereunto attached deposition, the said testimony was at the time the deposition was so taken, in the presence of the witness and in the presence of counsel for l)oth p'arties. reduced to writing, whereupon same was read by the witness and duly signed and attested by him. And I further certify that at the time and place named in the said notice hereunto attached the witness, Charles E. Davidson, Avas called by the con- testee, and was by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and having besn so sworn the said witness testified in answer to questions as appears by the hereunto attached deposition ; that thereupon the testimony of the said witness was, at the time the deposition was so taken, in the presence of the witness and in the presence of counsel for both parties, reduced to writing, whereupon same was read by the witness and duly signed and attested by him. That thereupon at the time and place ujentioned in said notice hereunto attached the witness, J. AA'. Bell, was duly called as a witness by the con- testee. who. being by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, testified in answer to questions as appears by the here- unto annexed deposition, and that thereupon the testimony of the said witness was, at the time the deposition was so taken, in the presence of the witness and in the presence of counsel for both parties, reduced to writing, whereupon- the same was read by the witness and duly signed and attested by him. And I do further certify that the following pages contain the stipulation and the testimonv of each and all of the witnesses named, taken as above referred to, and that the exhibits mentioned and referred to in the testimony, and duly 40 WICKEESHAM VS. SULZEE. identified tlierein, are transmitted lierewitli and attaclied liereto, and so marked tliat tlie same can l3e readily identified. Testimony for contestant. DKPOKITION OF JAMES WICKEllSIIAM, CONTESTANT. Pursuant to notice filed lierein and marked " Exhibit No. 1," tlie deposition of James Wickersiiani was taken before D. B. Mull, Esq., a notary public in and for the District of Columbia, in room 160, House Office Building, Washington, D. C, Wednesday, May 16, 1917, at 10 o'clock a. m. Present : James Wickersham, contestant ; Charles A. Sulzer, contestee ; James T. Lloyd, attorney for contestee. James Wickersham, the contestant, called in his oAvn behalf, being first duly sworn, testified as follows : Mr. WicKEESHAM. My name is James Wickersham. I am more than 2.5 years of age. I am 59 years of age. Mr. Lloyd. That is not material, because it is admitted in the pleading. Mr. Wickersham. My actual residsnce is at Fairbanks, Alaska. On the 9th day of April, 1917, I served notice of contest against Mr. Charles A. Sulzer in the matter of the contest brought by me as contestant against him for the office of Delegate from the Territory of Alaska, based upon the election held in that Territory on the 7th day of November, 1916. A copy of that notice of contest was served upon Mr. Sulzer. That is admitted, Mr. Lloyd? I think the record ought to show that Mr. Lloyd appears here for Mr. Sulzer. Mr. Lloyd. Yes ; if it does not already show it. Mr. Wickersham. And I appear for myself. On the 9th day of May, 1917, I received a copy of Mr. Sulzer's answer and cross complaint, or notice, served by him upon me on that day. Thereafter and on the 12th day of May, 1917, I served upon Mr. Sulzer my leply and answer to his cross petition of contest ; and on the said 12th day of May I served upon Mr. Sulzer notice of taking the deposition of James Wicker- sham, contestant. Now, Mr. Lloyd, it is admitted that all these papers were served on both sides ? Mr. Lloyd. Yes ; so far as we are concerned. Mr. Wickersham. This notice of taking the deposition I will file in the rec- ord. It is not verified by the party who served it. (Marked " Exhibit No. 1." and hereto attached.) Mr. Lloyd. That is all right. • Mr. Wickersham. 1"ou do not object to that? Mr. Lloyd. Y'ou can say that all informalities are waived by contestee's attorney. Mr. Wickersham. I file with the Mr. Lloyd (interposing). Right at that juncture, your answer to him can be inserted later, because it has not come in yet. Mr. Wickersham. I file with the notary public herein and ask to have it attached to my deposition, so that it may go to the Clerk of the House of Rep- resentatives and to the House and may be referred to the proper committee, the original of my notice of contest, dated the 10th of April, 1917, signed by me and verified by me. and also on the last page, before Mr. D. B. Mull, notary public. Mr. Lloyd. What is that paper? Mr. WiCKERSHAii. This is the original notice of contest. I imderstand that has to go with the deposition to the Clerk of the House. Is that your under- standing of it? I do not file it as a part of the deposition. I merely file it and ask that it go with the deposition. Mr. Lloyd. Yes. Mr. Wickersham. I do not know what the practice is. Mr. Lloyd. The practice is that they are not mentioned in connection with the depositioiL because you will have a whole lot of depositions. Mr. Wickersham. I am not offering it as a part of the deposition. Mr. Lloyd. It then goes with the paper? IMr. Wickersham. It just goes with the paper. Now, this deposition is being taken here, and it is proper to have it go with the deposition. WIOKERSHAM VS. SULZEE. 41 Mr. Lloyd. Here is anotlier tiling about it. There is one reason for not doing that. Yon are entitled to hold it in your possession until the papers are tiled, and this deposition Mr. WiCKERSHAM (Interposiug) . It has to go to the Clerk. Mr. Lloyd. Yes ; it goes to the Clerk. Mr. WicKEESHAit. I know that. Mr. Lloyd. So that it is just as well not to have it go in the deposition. Y'ou can hold it. Mr. WicKEKSHAM. I do not offer it as a part of my deposition. Mr. Lloyd. But to go with the papers. IMr. WicKEKSHAM. Very well. Then I will not offer it, even to go with the deposition. I will file it with the Clerk at the proper time. Mr. Lloyd. Yes : I think you will find that more satisfactory to yourself. Mr. WicKERSHAsi. I do not know what the prevailing practice is- before the Committees on Elections in contested election cases before the House of Repre- sentatives with respect to taking judicial notice of the acts of Congress gov- erning such cases or questions arising in them, and for fear that there might be some question about it I want to call the special attention of the committee and the House to the act of Congress of May 7, 1906. l>eing in 34 Statutes at Large, page 169, which is an act providing for the election of a Delegate to Congress from the Territory of Alaska. I want that particular act noted in connection with this case. I also call attention in the same way to the act of Congress of August 24, 1912. being an act creating the Territorial Legislature of the Territory of Alaska, conferring judicial powers thereon, and for other ptirposes, which will be found in 37 Statutes at Large, beginning at page 512. On the 7th day of November, 1916, an election was held in the Territory of Alaska for the election of a Delegate from that Territory to Congress, and I was one of the candidates at that election ; Mr. Charles A. Sulzer was another one of the candidates ; and Mrs. Lena Morrow Lewis was the third candidate. At that election James Wickersham, the contestant in this case, received 6,490 votes, according to the final canvass and the compilation of rettirns made by the Territorial Canvassing Board ; Mr. Charles A. Sulzer received 6,459 votes ; and Mrs. Lena Morrow Lewis received 1,346 votes. The canvassing board of the Territory of Alaska was at that time composed of the governor, J. F. A. Strong ; the surveyor general, Charles E. Davidson ; and the collector of ctistoms, John F. Pugh. These three exectitive officers of the Territory of Alaska are made the canvassing board by the act of Congress of May 7, 1906, providing for the election of a Delegate from the Territory of Alaska, and their powers are extended by the act of Congress of August 24. 1912. creating the Territorial Legislature, so as to include within their duties that of canvassing and compiling the votes and returns for members of the Territorial Legislature. The canvassing board of the Territory of Alaska met in the governor's office at Juneau, Alaska, on January 19, 1917, and proceeded thereafter from time to time to canvass and compile the election returns of that election, until on March 1, 1917, they had completed the canvass of the votes and had by a formal declaration in their minutes declared this contestant to be elected. I now offer in evidence in this case, and ask to have attached to my depo- sition, a full, true, and correct copy of the mintttes of the said canvassing board of the Territory of Alaska, certified to under the hands and seals of the gover- nor of Alaska, the collector of customs of Alaska, and the surveyor general of Alaska, together with the great seal of the Territory attached thereto. IMr. Llo'yd. Contestee objects to the introduction on the ground that it is im^iaterial. (The paper referred to is marked "Exhibit No. 2" and attached hereto.) Mr. Wickersham. Thereafter and on March 2, 1917, Mr. Charles A. Sulzer began a suit in the district court of the district of Alaska, at Juneau, Alaska, entitled : " The Territory of Alaska, on the relation of Charles A. Sulzer and Charles A. Sulzer, relator and plaintiff, v. The Canvassing Board for the Territory t»i Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants." being No. 1593-A in the said district court for the District of Alaska, division No. 1, and filed his petition in said suit in said court on the said 2d day of March, 1917. 42 WICKEESHAM VS. SULZEE. Thereupon and on the sume day the judge of the said court issued an alterna- tive writ of mandamus in the said suit directed to the canvassing board order- ing the canvassing board to— — Mr. Lloyd. Judge, are you making those statements on your own Ivuowledge? Mr. WiCKEESHAM. No. T am making tliem ft-om the record, merely to call attention to the record, ordering the canvassing board to : " Reject and do not count the returns and the votes received and transmitted to you from the following precincts, to wit : Choggiung : For James Wickersham 25 For Charles A. Sulzer 3 Deer in g: For James Wickersham ^ 10 For Charles A. Sulzer 6 Nizina : For .Tames Wickersham 7 For Charles A. Sulzer 2 Nushagak : For James Wickersham 10 For Charles A. Sulzer 3 Utica : For James Wickersham . 13 For Charles A. Sulzer 4 Bonafleld : For James Wickersham 3 For Charles A. Sulzer 1 Vault : For James Wickersham 8 For Charles A. Sulzer 2 " and that you issue a certificate of election of Charles A. Sulzer, the relator herein, certifying that he has been duty elected as a Delegate to Congress for the Territory of Alaska, at the election held on November 7, 1916, and that you, and e;ich of you, return this writ with your certificate, and the certificate of each of you annexed, of having done as you are herein commanded, or the cause of your omission thereof, on the 3d day of March, 1917," etc. Theieafter and about March 7, 1917, a stipulation was entered into between the attorneys for the relator and the three members of the canvassing board settling the pleadings. Thereafter and on March 6, 1917, a separate answer was filed by John F. Pugh, one of the members of the canvassing board ; and on the same day a separate answer was filed by Gov. Strong and Surveyer General Davidson as members of the said board in said cause. Thei-eafter the governor and the surveyor general, in addition to the facts set forth in their original answer to the alternative writ, filed a document in the said court setting up that a protest had been made to the board by Emery Valentine on the 21st of March, 1917. That protest and their further answer were filed by the governor and the secretary of the Territory, with the request that the court instruct them what disposition to make of the protest. Mr. Lloyd. That is objected to on the ground that it is immaterial as testi- mony and has no bearing whatever upon the issues in this case. Mr. WiCKERSHAjr. Thereaftei- and on March 22, 1917. the judge of that court, the Hon. Robert W. Jennings, wrote a letter to the governor and the surveyor general, dated March 22. 1917, in which he acknowledged the filing of the said documents in the record, but gave them no instruction in relation to the matter. These letters and a reply thereafter made by the governor and the surveyor general to the judge's letter, are all in the record which I will now file. Mr. Lloyd. I make the same objection. Mr. Wickersham. Thereafter and on the 23d day of March, 1917, the judge issued a peremptory writ of mandamus against the members of the canvassing board, in which he set out in full the complaint of the relator, Charles A. Sulzer; and following that, issued his peremptory writ, which concluded as follows : " Therefore, this is to command you and each of you, that upon receipt of this writ of mandamus you do forthwith convene as a canvassing board for the Territory of Alaska, and that you reject the votes from the said precincts WICKEESHAM VS. SULZER. 43 of Choggiung, Deering, Nushagak, Utica, Bonnifielcl, and Vault, and that you issue a certificate of election to Charles A. Sulzer as having received the greatest number of votes for Delegate to Congress from Alaska, and that said certificate be in the usual form, as by law provided. " And this you are in nowise to omit. " Given under my hand and the seal of tliis court this 23d day of March, 1917. Robert W. Jennings, Judge." With the seal of the court attached. The attention of the committee is called to the fact tliat the words " usual form " in this mandate are underscored in the original copy. I have called attention to the fact that the governor and the surveyor general answered Judge Jennings's letter by a letter dated by them March 23, 1917, and I now introduce all these documents in evidence in this case and ask that they be attached to my deposition as a part of it. They are properly certified by the clerk of the district court for the district of Alaska, division No. 1, at Juneau. Have you any objection to make to them? Mr. Lloyd. Just the formal ob.iection — immaterial and not responsive to the issue in this case. Mr. WiCKERSHAM. This is a certified copy of the record in the district court for the district of Alaska, in the case of Sulzer v. Canvassing Board. (The record referred to is marked Exhibit No. 3, and attached hereto.) Mr. WiCKERSHAM. I was not made a party to the suit of Sulzer v. Canvassing Board in the district court of the Territory of Alaska, and was not given any notice or served with any subpoena or summons of any kind, and had no knowledge or information respecting it, except such as I gathered from the newspapers or letters coming to me from people in Alaska. At that time I was in the city of Washington attending to my duties as a Delegate from the Territory of Alaska, and more than three thousand miles away from the place where the suit was brought. Judge Jennings and Mr. John F. Pugh are bothers-in-law. I think that is admitted, however, in the answer? Mr. Lloyd. Yes. Mr. WiCKERSHAM. Four years ago, in 1912, Judge Jennings was a candidate for Delegate from Alaska Mr. Lloyd. We have no objection to that, but it is not material. Mr. WiCKERSHAM (continuing). Against me, and has been one of my violent personal opponents ever since. I now ask to file in this case my reply and answer to the reply and answer of Mr. Sulzer in this case, signed by me and sworn to before Mr. Mull on the .12th of May, 1917. I suppose. Mr. Lloyd, that might take the same course as my original notice of contest. Mr. Lloyd. I think so ; yes. Mr. WiCKERSHAM. All these pleadings may be just filed with the clerk and not necessarily with the stenographer. Mr. Lloyd. All right. That is the practice in other cases. Mr. WiCKERSHAM. Now, I have filed in this case the notice of taking the deposition of the contestant, James Wickersham, served on Mr. Sulzer May 12, 1917. I want that to go in the record. There is no proof of service on here, Mr. Lloyd. Mr. Lloyd. We admit that it was served. Mr. WiCKERSHAM. You admit that it was served on the 12th of May, 1917? Mr. Lloyd. Yes. Mr. WiCKERSHAM. I uow ofCer in evidence a certified copy of the election returns from the precinct of Chogiung, in the Bristol Bay recording district, Territory of Alaska, the certificate being signed by the governor of Alaska and the secretary of the Territory, with the seal of the Territory attached. I ask to have it marked " Exhibit No. 4," and ofEer it to counsel for the con- testee for examination. (The paper referred to is marked " Exhibit No. 4 " and attached hereto.) Mr WiCKERSHAM. I also ofeer in evidence and "ask to have marked as an exhibit a certified copy of the election returns from the Nushagak voting pre- cinct in the Bristol Bay recording district, third division. Territory of Alaska, properly certified. Mr. Lloyd. Just the same form as the other ? Mr. WiCKERSHAM. Just the same form as the other exactly. (The paper referred to is marked " Exhibit No. 5 " and hereto attached.) 44 WICKERSHAM VS. SULZER. I nlso offer in evidence and ask to liave marlved as an exliibit. as a part of my deposition, a certified copy of the election returns from tlie Deering precinct, second division, in tlie Territory of Alaska, and also certified by tlie governor and secretary of the Territory of Alaska as a full, true, and correct copy. (The paper referred to is marked " Exhibit No. 6 " and hereto attached.) I also offer in evidence and ask to have attached to and made a part of my deposition a certified copy of the duplicate certificate of the result of the gen- eral election in the Utica voting precinct, Fairhaven recording district, second division. Territory of Alaska, properly certified to by the governor and surveyor general of Alaska. (The paper referred to is marked "Exhibit No. 7" and hereto attached.) Mr. Lloyd. Judge, what do you understand is meant by " duplicate cer- tificate"? Mr. WicKEKSHAM. When the judges of the election make up their final tally the night after the election is finished they make tv^o copies of the returns. One copy is sent to the governor of the Territory of Alaska and the other is sent to the clerk of the district court in the division in which the election precinct is located. If the return coming to the governor of Alaska is not complete or does not arrive, the governor may call upon the clerk for a certified copy of the duplicate certificate in his possession, and the statute requires that to be used in place of the original, which the law authorizes to be sent to the governor in the first place, if it does not reach him or if it is irregular. This is a certified copy of the duplicate in the hands of the clerk of the court. I also offer in evidence and ask to have attached to and made a part of my deposition a certified copy of the election returns from the Bonnifield voting pre- cinct in the Fairbanks recording district, fourth division, Territory of Alaska, properly certified by the governor and the secretary of the Territory. Mr. Lloyd. That is not a duplicate? Mr. WicKEESHAM. No ; that is a copy of the original. (The paper referred to is marked " Exhibit No. 8 " and hereto attached.) I now offer in evidence and ask to have attached to and made a part of my deposition a certified copy of the duplicate election returns from the Vault voting precinct in the Fairbanks recording district, fourth division. Territory of Alaska, properly certified to by the clerk of the court and by the governor and secretary of the Territory. (The paper referred to is marked " Exhibit No. 9 " and hereto attached.) I also offer in evidence another copy of the Vault precinct election returns, being a certified copy of the original filed in the office of the clerk of the district court of Alaska, at Fairbanks, Alaska, in the fourth division, being the division in which the Vault precinct is located. The one, Mr. Lloyd, is a certified copy from the governor's office, and the other is from the clerk's office. One is a duplicate and the other is a certified copy of the original. (The paper referred to is marked " Exhibit No. 10 " and hereto attached.) I now offer in evidence and ask to have made a part of my deposition and filed as an exhibit a certified copy of the election returns and list of persons who signed challenge-oath forms in the Fort Gibbon voting precinct, in the Fort Gib- bon recording district, fourth jndicial division. Territory of Alaska, at the gen- eral election of November 7. 1916. This certified copy is certified to by the governor and the surveyor general of Alaska, with the gi*eat seal of the Terri- tory attached. (The paper referred to is marked " Exhibit No. 11 "' and hereto attached.) Mr. Lloyd. That is objected to because no certificate with reference to the list of challenges is signed by the judges, and there is nothing here to indicate that the names given were challenged according to law, and because the statement is improper and immaterial to the issues. Mr. WiCKERSHAM. The town of Tanana is located at the mouth of the Tanana River where it empties into the Yukon, and on the north bank of the Yukon, opposite the mouth of the Tanana, there is a United States military post situ- ated adjoining the town. The military post is named Fort Gibbon and is located upon a military reservation. The military reservation and the town are side by side, the town not being on the reservation, but on the adjoining tract. At the election held in Alaska for the election of a Delegate on November 7, 1916, and prior thereto, a precinct was cut off and named Fort Gibbon precinct, which included the military post, and there were a large number of soldiers stationed there who voted at that election. WICKERSHAM VS. SULZER. 45 Mr. Lloyd. Xow, just at that point : Have you personal knowledge of their voting ? Mr. WicKEESHAM. I havo the proof here. Mr. Lloyd. I beg your pardon. I asked you if you had personal knowledge of their voting. Mr. WicKERSHAM. I was not there and did not see them vote ; no. There were 33 soldiers who voted at that election in the Fort Gibbon precinct. Mr. Lloyd. How do you know it? Mr. WicKERSHAM. Their names are on the list of challenged voters an J each of them took the oath and voted, according to this record. Mr. Lloyd. AVas each of the 33 a soldier? Mr. WICKERSHAM. Yes. Mr. Lloyd. Do you know that personally? Mr. WICKERSHAM. No. Mr. Lloyd. Is there anything in that statement to show that they were soldiers? Mr. WICKERSHAM. Well, the statement is there. You can see that as well as I can. Mr. Lloyd. I appreciate that the statement is there, but there is nothing in that statement that shows that they were soldiers. Mr. WICKERSHAM. Very well. I now offer in evidence a certificate made and signed by Henry P. McCain, brigadier general. United States Army, being The Adjutant General of the Army in charge of the office here in the city of Wash- ington in the War Department, the certificate attached thereto being signed by the Secretary of War, by John C. Scofield, his assistant and chief clerk, and to which the great seal of the War Department is attached, giving the names of these 33 persons, these 33 soldiers who voted in the Fort Gibbon precinct, together with the dates of their enlistment and service, as shown in the cer- tificate. Each of these persons is named in the certified copy of the returns from the Fort Gibbon precinct as being one of the challenged voters at that precinct. I offer this certificate in evidence and ask to have it attached to my deposition and made a part thereof. You will find the list of challenged voters, Mr. Lloyd, contains those names. (The paper referred to is marked " Exhibit No. 12 " and hereto attached.) Mr. Lloyd. Objected to on the ground that it is not responsive to the issues in this contest, and does not show, either directly or indirectly, whether the indi- viduals named were entitled to vote. Mr. WicKEESHAM. I call your attention, Mr. Lloyd, to the fact that one of these names here is not shown to be a soldier. Mr. Lloyd. Did he reenlist? Mr. W^iCKERSHAM. No. At the end of this certificate The Adjutant General says : "And that I have found no record showing that any man bearing the name Clarence Hefrom has been in any Army organization that was stationed at Fort Gibbon. Alaska, on November 7, 1916, or enlisted in the Regular Army within the last eight years." Either he was not a soldier or we got his name wrong. I do not know which. Mr. Lloyd. All right. Mr. WicKERSHAM. I uow offor a letter froixi the governor of the Territory of Alaska, dated April 16, 1917, written to me in answer to my telegram asking for these certified copies of the names of the soldiers who voted at Port Gibbon. (The paper referred to is marked " Exhibit No. 13 " and hereto attached.) Mr. Lloyd. This letter is immaterial, but contestee does not object to its introduction. Mr. WICKEESHAM. It reads : " Teeritory of Alaska, " Goveenoe's Office, "Juneau, April 16, 1917. " Hon. James Wickeesham, " Congress Hall, Washington. D. C. " Dear Sie : Inclosed herewith you will find a certified copy of the election register of the Fort Gibbon voting precinct, together with a list of the names of persons who signed challenge oaths, and a copy of the form of challenge oath used, a'^ contained in the original returns received by this office from the judges of election at the Fort Gibbon voting precinct. 46 WICKERSHAM VS. SULZER. "These certified documents are forwarded in response to the request con- tained in your telegram of the 14th instant, reading as follows : Please forward by mail certified record names parties voting Fort Gibbon precincts who were challenged and swore in vote. Understand they are sol- diers. Want information War Department. Send any information showing they are soldiers.' " While I have been unofficially advised that the persons who swore in their votes in the Fort Gibbon voting precinct were soldiers from the fort, there is nothing in the records of the election board showing that such was the case In fact, aside from the challenge oaths, the returns contained no record what- ever of the matter. " Faithfully yours. " J. F. A. Stkong, Governor." There were 50 votes cast in the Fort Gibbon precinct on the 7th day of November, 1916, for Delegate from Alaska, of which I received but 9 votes. Some time ago I received notice from one of my friends at Eagle City that the four Signal Corps men located at Eagle City had voted at that election and had voted against me, for Mr. Sulzer. On May 12 I sent the following telegram to Mr. U. G. Myers, a prominent citizen there: " Washington, D. C, May 12, 1911. " U. G. Myees. Eagle, Alaska: " Have personal interview with each soldier who voted November 7 last at Eagle, and ask each if he voted for Charles A. Sulzer. Send me night letter giving full name and answer " Yes " or " No." Show this telegram to each soldier and ask him to answer fairly. " James Wickeksham." (The telegram referred to is marked " Exhibit No. 14 " and hereto attached.) Mr. Lloyd. We object to the nitroduction of the telegram. Mr. Wickersham. I received this reply to that telegram : " Eagle, Alaska " Mr. Lloyd. W^e object to the reply thereto because the statement of what he may have done is not legally answered by a telegram. Mr. Wickersham. The reply is as follows : " Eagle, Alaska, May 14, 1917. " Hon. James Wickersham, "Washington, D. C: " Compliance with your night letter, Barney R. Peppersack, Squire Lowry, and Charles B. Murphy answer ' Yes.' James S. McDowell declines answer. " U. G. Myers." (The telegram referred to is marked " Exhibit No. 15 " and hereto attached.) I asked the War Department to give me the record of these four men — Barney R. Peppersack. Squire Lowry, Charles P. Murphy, and James S. Mc- Dowell — and I now offer in evidence a certificate, signed by The Adjutant General, and certified to by the War Department, showing that each one of those four men was, on November 7, 1916, the day he voted at Eagle City, Alaska, a soldier in the Army of the United States. (The paper referred to is marked "Exhibit No. 16" and hereto attached.) And I also ofCer in evidence these two telegrams and ask to have them marked as exhibits and attached to my deposition. (The telegrams referred to have already been marked "Exhibits Nos. 14 and 15" and hereto attached.) I also offer in evidence a letter from Gov. Strong, dated December 29, 1916, and I show it to Mr. Lloyd before I read it. Mr. Lloyd. That letter is not material, but we do not object to its introduc- tion. Mr. Wickersham. I offer it because of the fact that it gave me notice of the meeting of the canvassing board. Mr. Lloyd. I suppose that is it. (The letter refen-ed to is marked " Exhibit No. 17 " and hereto attached.) WICKERSHAM VS. SULZER. 47 * Mr. WiCKEKSHAM. I ask to read it : " Teeeitoky of Alaska, Goveenoe's Office, " Jiineau, December 29, 1916. '■ Hon. James Wickeesham, " Delegate from. Alaska, Washington, D. C. " Deae Sie: According to an opinion of the counsel for the Territory, made at tlie request of tliis office, tlie canvassing board must meet not earlier than January 7 next, nor later than January 16 next, for the purpose of canvassing the vote cast at the election of November 7 last. The board, therefore, will not meet earlier than January 16. You, as one of the candidates for Delegate, may desire to be represented at such meeting or meetings by counsel. " I am, yours, very truly, " J. F. A. Strong. " Governor, Member of Canvassing Board." Immediately upon receiving that notice from the governor I telegraphed him as follows : " Washington, D. C, January 15, 1917. " Gov. J. F. A. Strong, "Member Canvassing Board, Juneau, Alaska: " Letter received. Section 5, article 1, Constitution United States, provides each House shall be the judge of the election, returns, and qualifications of its own Members. The Alaska canvassing board has no authority under act creating it to do more than tabulate returns, canvass, and compile in writing, and issue certificate to candidate having the greatest number of votes for Dele- gate on the face of the returns. Any contest or trial must be begun before the Hou.se of Representatives. See Hinds' Precedents, volume 1, section 423. Please give copy to Emory Valentine. " James Wickersham. "Delegate from Alaska. " Official business. " James Wickersham, " Delegate from Alaska." I offer this telegram in evidence and ask that it be marked as an exhibit and attached to my deposition. (The telegram referred to is marked " Exhibit No. 18" and hereto attached.) Mr. Lloyd. Objected to as improper and immaterial. Mr. A\'iCKERSHAM. Ou the S'lme day I wrote to the governor a letter as follows : "Washington, D. C. January 1o, 1911. " Hon. J. F. A. Strong, " Governor of Alaska. Juneau, Alaska. " My Deae Goveenoe : I have your letter of December 29. which reached my office this date, advising me that'll was the purpose of the canvassing board to compile the returns and declare rhe result of the delegate election not earlier than to-morrow. Since I could not avail myself of an answer in writing I have this day sent you a telegram as follows: " ' Washington, D. C, January 15. 1917. " ' (Jov. .T. F. A. Steong, "' Member Canvassing Board, Juneau, Alaska: "^Letter received. Section 5, Article I. Constitution United States, provides each House shall be the judge of the election returns and qualifications of its )wn Members. The Alaska canvassing board has no authority under act cre- ating it to do more than tabulate returns, canvass, and compile in writing and issue certificate to candidate having tlie greatest number of votes for Delegate on the face of the returns. Any contest or trial must be begun before the House of Representatives. See Hinds Precedents, volume 1, section 423. Please give copy to Emory Valentine.' " Respectfully, " James Wickeesham." (The letter referred to is marked "Exhibit No. 19" and hereto attached.) I call attention of counsel to the fact that this notice from the governor of the meeting of the canvassing board on January 16 was received by me in Washington, D. C, on January 15, and did not give me any time to get to 48 WICKEESHAM VS. SULZER. Juneau, Alaska. 3.000 miles away, if I liad desired to do so. However, at that time I was in attentlance upon Congress as the Delegate from Alaska, and Congress did not adjourn until March 4, and public bu.siness kept me from going there. On January 18 Gov. Strong, at Juneau, Alaska, wrote me a letter in answer to my telegram of the loth, and I offer it in evidence. Mr. Lloyd. Objected to as immaterial. (The letter referred to is marked "Exhibit No. 20" and liereto attached.) Mr. WicKEESHAM. The governor's letter of January 18 reads as follows : " Teekitoey of Alaska, " Governoe's Office, " Juneau, January 18, 1911. " Hon. James Wickeesham, " Delegate to Congress, Washingto^i, D. C. " Dear Sir : I beg to acknowledge receipt of your telegram of January 15, with reference to the duties of the canvassing board. " In reply I have to advise you that these duties were, I think, fairly well understood by the canvassing board, and it was not the intention of the board to go behind the election returns. The notification sent you was formal and merely an act of courtesy, an identical notification having been sent to Mr. Sulzer. The board will not meet until Friday, the 19th instant, owing to the absence of Mr. Pugh, collector of customs, who has been absent from the Terri- tory for some time. I believe that all of the election returns have been received except those from Bristol Bay and a few precincts on the Alaska Peninsula, and cnese, I understand, reached Seward last Saturday and should arrive herti within a few clays. "A copy of your telegram was forwarded to Mr. Valentine as per your request. " Yours, very truly, " J. F. A. Strong, Governor." I ask that this be filed and attached to my deposition as an exhibit. I now offer in evidence a certified copy of the certificate of the judges from the Utica and Deering precincts, showing why the so-called territorial or official ballots were not used in those precincts. I ask to have it marked as an exhibit, attached to my deposition and made a part thereof. (The paper referred to is marked " Exhibit No. 21 " and hereto attached.) I also now offer in evidence a certificate of the Postmaster General of the United States showing the reason why the so-called territorial or official ballots were not us6d at Choggiung and Nushagak precincts in the third division in- stead of the congressional form of ballots, the reason being that the mails did not run. I ask to have this certificate marked as an exhibit, attached to my deposition, and made a part thereof. (The paper referred to is marked " Exhibit No. 22 " and hereto attached.) With regard to the voting of the soldiers at Fort Gibbon precinct, I was in- formed before the election that the Fort Gibbon precinct had been set apart so^ that they might be voted and so that they would not have to go to the town of Tanana and vote. I was notified by telegraph of the fact on the day of the elec- tion, or the day before, and it is a notorious fact that the soldiers in Alaska at this last campaign, almost without exception, voted against me and for Mr. Sulzer. I say that not because I saw any of them vote, but upon general in- formation and notice coming to me from many different quarters of such notor- ious character as to be public in the Territory. I believe that is all. Mr. Lloyd. Now, with reference to the soldiers' vote, is it not true that the soldiers in other campaigns have voted for you? Mr. WiCKERSHAM. Not to my knowledge. Mr. Lloyd. Is it not your information that they voted for you? Mr. WiCKERSHAM. No. I have no information on the subject. I do not know that it was ever mentioned before. I received a telegram, Mr. Lloyd, just before the election asking me if soldiers could vote from Fort Gibbon and I said no, not without they were actual, bona fide residents in the Territory prior to theil- enlistment. Mr. Lloyd. Did you give authority to anyone to appear before the canvassing board? Mr. WiCKERSHAM. I did not. Nobody appeared for me at all, Mr. Lloyd. Do you know Mr. Russell who lives up there? Mr. WiCKERSHAM. I do. WICKERSHAM VS. SULZER. 49 Mr. Lloyd. In the stuteuient whicli you have filed I notice that he says: "I have in my letter file authority from Mr. Wickersham to represent him before this canvassing board and to employ a lawyer if necessary." Mr. AVi( KERSH.\M. I do not think he had any authority to employ a lawyer. Here is what happened. Before I left there I said : " Mr. Russell, you look out for things here and attend the meeting of the canvassing board and see that nothing goes wrong," or something of that nature ; but that was sdl. He was not employed by me. Mr. Lloyd. Well, he had a letter to that effect, did he not? Mr. WiCKp:iiSHAM. I do not know that he had. I do not remember any such letter. It is possible that he did ; but it was about that substance. Mr. Lloy'd. He says : " He also wrote that it would be unnecessary to embar- rass the board in any way ; that he had every confidence in the integrity and honesty of the canvassing board, and for that reason he did not-want to appear- before them or embarras them." Mr. WiCKEBSHAM. I have no recollection of saying anything of that kind. I certainly felt that way, although I do not know that I said that to him. Mr. Lloy'd. He said that you wrote that. Mr. WicKEESHAM. I Certainly felt that way. I had every confidence in the members of the canvassing board, all of theuL Mr. Lloyd. Is that all? Mr. WicKEKSHAM. Yes. There is one other thing along that line that I want to say : That the entire election machinery in the Territory of Alaska was in the hands of my opponents. The law provides that the judge of the district court in Alaska shall appoint the commissioners in the various precincts in the Territory of Alaska, and it then provides that the commissioners in the various precincts shall appoint all of the election .ludges. Three election judges are appointed in each voting precinct, and t\\o of those judges act as clerks of elec- tion. So that there are, as I understand it, in practice but three men appointed in each voting precinct, and those are all appointed by the commissioners in the recording precincts. Mr. Lloyd. But not more than two of them shall be of the same political party. Mr. Wickersham. Not more than two of them shall be of the same political party ; and the judges appoint the commissioners and the commissioners ap- pohit the election officers. Now, the President of the United States appoints the judges, and we have four judges in Alaska — .Judge Tucker, at Nome; Judge Bunnell, who ran against me two years ago for Delegate, at Fairbanks ; Judge Brown, at Valdez ; and Judge Jennings, who ran against me four years ago for Delegate, at Juneau. Now, those four judges appoint each commissioner, and the commissioners appoint all the election officers, so that the whole election machinery of Alaska was in the hands of my opponents. Now, the canvassing board consists of the governor, the surveyor general, and the collector of cus- toms, all three being Democrats appointed by the President, so that from top to bottom everything was in the hands of the friends of Mr. Sulzer. I am not complaining about it, but I am just mentioning that fact. Mr. Lloyd. You do not claim that you suffered because of that fact? Mr. Wickersham. Oh, undoubtedly ; yes. Mr. Lloy'd. You have been one of the judges of the Territory of Alaska? Mr. Wickersham. Yes. Mr. Lloyd. You would not reflect upon the integrity of the courts, would you ? ■ Mr. WiCKERSHAir. Ordinarily, no. I do not think there is any question but what Judge Tucker at Nome, or Judge Brown at Valdez, would have been per- fectly fair about a thing of that kind; l>ut Judge Bunnell and Judge Jennings are very bitter partisans, both of them ; and both of them having run against me once are more keenly so than they otherwise would be. I do not mean any- thing criminal or anything of that kind, but they are just Mr. Lloyd. I'ou do not charge that the election judges who would pass upon these matters were not divided as the law directs? Mr. AVicKERSHAM. No ; I think they were. But you nuist remember that T was not nominated as a Republican from Alaska at all. I never have been. The Republican organization up there, headed by Mr. Shackleford, always opposed me. and they did this time. They supported Mr. Sulzer. Mr. Lloyd. Is it not true that there were a number of other officers voted on at the same time? Mr. AVicKERSHAM. Oh, yes. 13289—17 4 50 WICKERSHAM VS. SULZEK. Mr. Lloyd. And that the election judges were, as a rule, Republican judges? T mean, the minority representation was ordinarily Republican. Mr. WiCKEKSHAM. Well, if they were, they were not of those who were known to be my friends. They were of the opposing faction. They were either Mr. Shackleford's Republicans or they were Socialists ; and I am not reflecting on them at all by saying that. Mr. Lloyd. Well, I see nothing especially unfair in that. Mr. WiCKERSHAM. I am just saying that none of my friends had any control of the election machinery. Mr. Lloyd. You do not allege that Mr. Sulzer had control of the election machinery ? Mr. WiCKERSHAM. I allege that his friends had. Mr. Lloyd. You mean that the Democrats had? Mr. WiCKERSHAM. Well, his particular friends among the Democrats had ; yes. Mr. SuLZER. Do you think that the United States commissioners in the lirst district were appointed with any view to their action in the election matter ? Mr. WiCKERSHAM. Oh, I do not think Judge Jennings would appoint anybody to any office who did not do what he thought ought to be done at election time. Mr. SuLZER. Do you think that all the commissioners in the first division are Democrats? Mr. WiCKERSHAM. No. Mr. Sulzer. Do you know how many commissioners Judge Jennings has appointed in the first district at the last election? Mr. WiCKERSHAM. He has either appointed all of them or approved all of them since he has been in office. Mr. SuLZER. Do you know the politics of the United States commissioner at Ketchikan or Wrangell or Sitka? Mr. W^iCKERSHAM. No ; I do not. Mr. SuLZER. Or of the various other precincts? Mr. WiCKERSHAM. I havc given the matter no attention, except that I know they are not friendly to me, because they would not hold their offices under .Judge Jennhigs if they were. Mr. SuLZER. Do you think that Judge Thomas, the United States commis- sioner at Wrangell, is not friendly to you? Mr. WiCKERSHAM. I think Judge Thomas is not politically friendly toward me. Mr. SuLZER. Do you think he opposed you in the last election? Mr. WiCKERSHAM. I do. I have no doubt of it, although I have no positive proof of it one way or the other. Mr. Sulzer. Do you think that Judge De Armond, the United States com- missioner at Sitka, Alaska, is unfriendly and opposed you in the last election? Mr. WiCKERSHAM. I think so ; because if he had not been he would have been removed in three days after the news reached Juneau. Judge Jennings would have removed him. Mr. Sulzer. You think Judge Jennings would have removed him? Mr. WiCKERSHAM. I do ; yes. I think he is so partisan as that. Mr. Sulzer. Do you have any information to the effect that Judge Stackpole, at Ketchikan, is a Democrat and friendly toward the Democrats? Mr. WiCKERSHAM. Oh, there are some of those people who are Republicans, Mr. Sulzer, but you must remember that the Shackleford Republicans all sup- ported you. They worked with Judge Jennings and with your friends. Mr. Sulzer. Well, I do not admit any such statement as that. Mr. WiCKERSHAM. You will admit that Mr. Shackleford supported you publicly ? Mr. Sulzer. Shackleford was not in the Territory of Alaska at that time or at any time previous to that. I do not know anything whatever regarding Mr. Shackleford or his organization, so far as that is concerned, but I wanted to get at how familiar you were with the politics of the commissioners of the Territory, in order to substantiate the statement that you made that all the election machinery was in the control of the Democratic Party and favorable to me. I do not admit any such condition as that whatever. I do not think that is the case. As a matter of fact, I do not think the commissioners influenced the matter one way or the other. Mr. WiCKERSHAM. Well, I certainly do. Mr. Sulzer. I think you had just as much advantage in that regard as I had. Mr. WiCKERSHAM. I Certainly did not. WICKEESHAM VS. SULZER. 51 Mr. Lloyd. Judge, if there is anytliing you want to straighten out about this matter you can call on me at my office. Mr. WiCKEESHAM. All right. Mr. Lloyd. Are you willing, for my information, that I might see this paper, the minutes of the canvassing board? (Exhibit No. 2.) Mr. WiCKEESHAM. I am willing, of course, but I do not want it to go out of the hands of the proper officials. Mr. Lloyd. Not out of my hands? Mr. WiCKEESHAM. Not out of the hands of the proper officials. I want it to get safely into the hands of the clerk. Mr. Lloyd. Certainly, but I did not want to ask him for it without your consent. If you will consent that I may have it until to-morrow, I will return it to-morrow morning. Mr. WiCKEESHAM. That is, the minutes of the canvassing board? Mr. Lloyd. Yes. Mr. WiCKEESHAM. The certified copy of the minutes of the canvassing board? Mr. Lloyd. Yes. Mr. WiCKEESHAM. I wlll agree that that will go into your possession. Mr. Lloyd. In my individual possession. Mr. WiCKEESHAM. Ycs ; and to-morrow it must be attached to the original deposition. Mr. Lloyd. I will send it back by my son at 11.30 to Mr. Mull's office in the guard room. Mr. WiCKEESHAM. Before the record is closed, I offer in evidence and ask to have marked as an exhibit and attached to my deposition, a carbon copy of the entire canvass and compilation of all the returns in the Territory of Alaska made by the canvassing board for the Territory of Alaska at Juneau, for the November 7, 1916, election. (The paper referred to is marked " Exhibit No. 23," and hereto attached.) James Wickeesham. Subscribed and sworn to before me this 17th day of May, 1917. [SEAL.] D. B. Mull, Notary Public in and, for the District of Colurribia. My commission expires May 1, 1918. Exhibit No. 1. 5/16/17. NOTICE OF TAKING THE DEPOSITION OF JAMES WICKEESHAM, CONTESTANT. To Chaeles a. Sulzee, contestee in the above proceeding : You are hereby notified that the contestant herein will take the deposition of James Wickersham, whose present place of residence is at Congress Hall Hotel, Washington, D. C, as a witness for contestant in the above-entitled contest, be- fore Hon. D. B. Mull, a notary public in and for the District of Columbia, in room No. 160, in the House Office Building, in Washington, D. C, beginning at the hour of 10 o'clock in the forenoon on Wednesday, May 16, 1917, and from day to day thereafter until the same is completed, and will at that time and place offer in evidence as a part of the testimony of said James Wickersham a full, true, and correct copy of all the pleadings and papers filed in the district court of Alaska, first division, in the case of Sulzer v. The Canvassing Board, being cause No. 1593-A, in said court, together with the final judgment and per- emptory writ of mandamus therein, all being duly certified to as a full, true, and correct copy of said record by the clerk of said court, under his hand and the seal of said court ; and he will also at said time and place so offer in evi- dence in said contest cause a full, true, and correct copy of the minutes and proceedings of the said canvassing board in the canvass and compilation of the returns from the several precincts in said Territory of the results of the said election so held on November 7, 1916, for the election of a Delegate to Congress from Alaska, to the Sixty-fifth Congress ; said record and minutes being prop- erly certified to as a full, true, and correct copy by the governor of Alaska as chairman of said canvassing board and to which the hand of the secretary of Alaska is attached and the seal of said Territory ; and said contestant will also introduce the testimony of James Wickersham and such other evidence and testimony as may be proper and pertinent at that time and which shall be 52 WICKEESHAM VS. SULZEB. , within the issues of the case. Contestant reserves tlie right to introduce otlier testimony upon further notice in said cause. Please talve notice and be present at the time and place herein indicated. James Wickebsham, In propria pei'sonae. Washington, D. C, May 12, 1911. United States of America, District of Columbia, ss: , being first duly sworn, deposes and says that he is a male person over the age of 21 years, a citizen of the United States and not a party to or interested in the foregoing contest ; that on the ■ day of May, 1917, he .served a full, true, and correct copy of the above and foregoing notice of taking the testimony and deposition of James Wickersham upon Charles A. Sulzer, con- testee, in the city of Washington, and within the District of Columbia^ by per- sonally delivering to and leaving with said Sulzer personally said full, true, and correct copy thereof. Subscribed and sworn to before me this day of May, 1917. Notary Public in and for the District of Columbia. Exhibit No. 2. 5/16/17. United States of America, Territory of Alaska, ss: We, the undersigned, constituting the canvassing board of Alaska, as estab- lished by law, do hereby certify that the within is a full, true, and correct copy of the original minutes of the canvassing board of Alaska and the documents connected therewith and a part of said minutes, general election of 1916, as they appear on file in the office of the Secretary of the Territory of Alaska. In testimony whereof we have hereunto set our hands and seals, and the secretary of the Territory of Alaska has hereunto attached the great seal of the Territory of Alaska this 29th day of March, A. D. 1917. J. F. A. Strong, [seal.] Governor of Alaska. J. F. PuGH, [seal.] Collector of Customs of AlasJoa. Charles E. Davidson, [seal.] Surveyor General of Alaska and ex officio Secretary of the Territory. Attest : [seal.] Charles E. Davidson, Secretary of Alaska. Minutes of Meetings of Canvassing Board, Juneau, Alaska, January, 1917. Go^^rnor's Office, Juneau, Alaska, January 19, 1917, The canvassing board met this day at the governor's office, at 2 o'clock p. m., for the purpose of canvassing the returns for the election for Delegate to Con- gress, for members of the Territorial legislature, and for road commissioner in the four road districts of the Territory. The members of the canvassing board being those mentioned in the law : Governor, surveyor general, collector of customs. Mr. M. H. Sides and A. W. Fox were appointed to tally the votes and Mr. Frank A. Brittain stenographer. Precinct No. 1, Douglas, was the first canvassed, the vote shown being as follows : No. votes. Lena Morrow Lewis Charles A. Sulzer James Wickersham John M. Greene WICKERSHAM VS. SULZER. 53 No votes. James Heckman J. M. Tanner Carl Arola I^^els Anderson John Z. Bayless Monte Benson W. W. Casey James J. Connors Jofln Fahey : James Freeburn John G. Held Charles Helsing Peter C. McCormack Peter S. Early , Ed. C. Hurlburt John H. Cobb George B. Grigsby Oeorge D. Schofield Drv Wet : Eight hour — yes Eight honr — no Scattering GovEKNOK. Mr. Grigsby, the question which is confronting us is the matter of ballots rejected by the election board of precinct No. 1, Douglas, because they are marked on the right side of the ballot instead of on the left, as specified. It is apparent from the face of the ballot that the votes should be counted ; that is, where the intention of the voter, is apparent, as in this first ballot. Mr. Grigsby. You are entitled to count the vote. Governor. Your opinion to the board, then, is that this board should count these ballots, notwithstanding they are marked on the right-hand side instead of the left, the intention of the voter being apparent. Mr. Grigsby. That is my opinion, and I so advise the board to count the ballots. Governor. I direct your attention to the last ballot of Douglas precinct No. 1. Mr. Grigsby. As far as any candidate is concerned, it does not matter ; but as for the " wet " vote, it might be counted. Mr. E. Russell. Is this board going ahead and settle the technical questions before the ballots are exposed? There are several questions involved: First, that of marking a voter's ballot. Whether you are going to allow the ballots to he counted that are marked on the outside and do not invalidate the ballot in any other waJ^ In other words, it is clearly evident that the voter has voted 1 for attorney general, 1 for senator, 1 wet or dry, and whether that question is to be settled by the board. I will cite to you the question of the precinct of Utica. The status of the Utica precinct, where the board is going to pass on these questions, make it a matter of record. Governor. We know nothing of Utica precinct until we come to it. Officially, we know absolutely nothing about the Utica precinct. Mr. E. Russell. The only question I have is in the first division, in the count ■of the legislative ticket. Governor. We have sent for the Territorial counsel because of the six votes in precinct No. 1, Douglas, not being counted for the reason, evidently, although not stated in the slip, they were marked on the wrong side. They were marked on the right-hand side instead of the left, hence are the only spoiled ballots not counted in precinct No. 1. Douglas. Mr. Russell. I am not here to question anything that arises between McCor- mack and Freeburn, liut if by any " hook or crook " there should be a precinct counted that might change the ballots, then I want to be here. Governor. In precinct No. 2, Douglas, we find this : " Spoiled ballots Aot cast •or counted." There are three. Evidently the number was torn off in the first instance by the election officer, but they failed to tear off the other number after the voter had voted. Mr. Grigsby. In other words, the .judge spoiled the vote, if anyone did. There Is a perforated number and, under the law, the judge as he hands out the ballot to the voter tears off the number. The voter then marks his ballot, and it is the duty of the board to tear off the second number. If they were not cast they 54 * WICKERSHAM VS. SULZEE. would not be in the returns ; they could not be in the returns if they were not cast. GoA^ERNOR. Do you mean they were never in the ballot box? Mr. Grigsby. I do not see how they would send anything up here that they did not find in the ballot box, that was not cast. Can you tell who cast them? I would advise you to ascertain from the judges whether these votes were put in the ballot box ; if not, they should not be sent here ; if voted, they should be counted. Governor. This is No. 6614. Mr. PuGH. Here is a statement from the election board. The statement says : " They were not cast or counted." Therefore we have to accept the statement of the board that they were not cast or counted. GoATERNOE. I waut to ask the Territorial counsel this question : Precinct No. 1, Douglas, a certain count with six ballots rejected, apparently, because they were marked on the right side instead of the left. Is it the province, or does it come within the province of this board, to count these ballots and include in the votes of precinct No. 1, Douglas, or omit them as though they never existed? In other words, is it tlie duty of the board to include these ballots in the count? Mr. Grigsby. I do not want to be understood as stating that it is the duty of the board to examine the ballots from every precinct to see whether or not they are irregular, but where it is called to the attention of the board from the face of the ballots that votes are not counted which should be, then it is their duty to count them. Governor. We will apply this rule all the way through with respect to these ballots. The following ballots came with the returns of Douglas precinct. No. 1, not counted by the election judges, but counted by the canvassing board : Lena Morrow Lewis 1 Charles A. Sulzer 6 James Wickersham . 3 John M. Greene 3 James Heckman 1 J. M. Tanner 3 Carl Arola 1 Nels Anderson 4 John Z. Bayless 1 Monte Benson 4 W. W. Casey 3 James J. Connors 1 John Fahey 1 James Freeburn 2 John G. Held 2 Charles Helsing 1 Peter C. McCormack 2 George D. Schofield 4 George B. Grigsby 2 Ed. C. Hurlburt 6 Wet 7 Dry 1 Eight-hour, yes 6 SALMON CREEK SHEEP CREEK JUNEAU NO. 3 CHICHAGOF CHILKAT. The following letter was addressed to Gov. J. F. Strong: " Haines, Alaska, Novemlyer 8, 1916. " Gov. J. F. Strong, "Juneau, Alaska: " I herewith inclose the election returns from Chilkat voting precinct, five of which were not counted, the other two judges contending they were not legal, owing to the fact that the voters marked them in the regular way, but omitted placing the " X " in the proper margin. " Personally, being one of the judges, I contend that four of the said votes are legal. " You will note the slight irregularities on said ballots. It is evident that the said voters showed their intention and signified same by placing " X " after their choice. " Leon F. Ballard, " Judge of Election." WICKERSHAM VS. SULZER. 55 % GovEENOK. We will accept three and reject two ballots, one rejected because the voter signed his name to the ballot instead of putting an " X," the other because the voter had voted for an excess number of candidates. The others, according to the territorial counsel, were marked on the right margin of the ballot instead of the left, and according to his ruling, as in the Douglas precinct, these votes are counted. The following ballots came with the returns of Chilkat, not counted by the election judges, but counted by the canvassing board: Charles A. Sulzer 3 J. M. Tanner 2 Nels Anderson 1 Monte Benson 1 W. W. Casey 1 J. J. Connors 1 John Fahey 1 Charles Helsing 1 Peter S. Early 2 J. H. Cobb .- 1 Geo. B. Grigsby 1 Dry 3 Eight-hour, yes 3 EAGI.E — GOLD CEEEK. Three votes irregular, voters having voted for an excess number of can- didates. HAINES — HOONAH JUALIN JUALPA KAKE MENDENHALL PERSEVERANCE— PETERSBURG SITKA — SKAGWAY TENAKEE TREADWELL NO. 6 WINDHAM BAY WEANGELL SHAKAN. It being 5 o'clock, the board adjourned until 10 a. m. Saturday, January 20. SATURDAY, JANUARY 20, 1017. The canvassing board resumed the checking of election returns from the s'djournment on Friday, the following being the order in which the returns were taken up : Beaver Falls, Charcoal Point, Craig, Dolomi, Hadley, Kassan, Ketchikan, Loring. The election board at Loring failed to extend the tally book or to file the certificate. The canvassing board completed the tally and entered the vote from the tally sheet. The following letter, addressed to Gov. Strong, was read : " Loring, Novemher 8, 1916. " Dear Sir : We, the undersigned judges of election, regret to report that three spoiled or wrongly marked ballots were destroyed by one of the voters lucking them off the floor and burning them as waste paper before any of us noticed what had been done. " Yours truly, " Con E. Gkebil. " Mike Wadding, " Thos. McLoughlin." .juneau, precinct no. 2 juneau, precinct no. 1 scow bay sulzee. The board received no returns from the voting precincts at Chatham. Dundas, Gypsum, Warm Springs, Yakitat. The board was officially advised by the United States commissioner at Yakitat that no election was held in that precinct because " election literature " was not received in time to hold the election. Governor. The following is a copy of a telegram received from United States Commissioner DeArmond at Sitka, received by the clerk of the court for the first judicial division, with affidavit attached : " Official ballots received and forwarded in due time to all voting precincts where judges could be appointed. Could find no one to appoint at Warm Springs, Chatham, or Dundas. Gypsum returned their ballots saying ' No election.' " 56 WICKEESHAM VS. SULZER. Wr. W. A. HoLZHEiMEE. Ill representing the Democratic central committee I do not want to enter any objection to the informal count of the vote and delay matters, but would reserve the right of protest prior to this board certifying to its returns. I do not know that we have any right; at the same time, if there is a question. I want to reserve my right. BLUFF— DEEEING. There were no tally sheets received with the returns from Deering. UTICA. Governor. Mr. Grigsby, all that we have from this voting precinct is the register of the persons voting. Of course, we have the order establishing the voting precinct. We have a register in penciling of the persons voting in that precinct, together with " home-made " ballots, and that is all we have. Mr. Grigsby. No certificate? Goveenoe. We received no certificate. However, I have here a telegram from the clerk of the court from the second .iudieial division under date of Deceml)er 18, 1916, reading : " Utica made returns without certificate. Returns to you may have certificate. For reasons unknown, electicui blanks and ballots failed to reach Utica and Deering. Utica election no doubt legal, but returns prob- ably defective." Then, on January 11 I received this telegram from the clerk of tlie court : " Second set election returns Utica precinct, including certificate, register of oaths of judges, and pay roll received this oflBce to-day. All In due form and properly signed." Then he gives the results. (tovernor. T'tica was designated as a voting precinct. Mr. r,RiGSBY. There is no certificate of any judges here now? Governor. None, except the certificates of the persons voting. Mr. Grigsby. You can not count it as it stands, as the law says you have to canvass the vote specified in the certificate. C. E. Davidson. On the other hand, tlie clerk of the court says he has the certificate there. Mr. PuGH. Are we supposed to check the returns by telegraph like this? If there are any papers missing and the clerk has them? Mr. Grigsby. The board has the right to adjourn from day to day, but they can not count tlie returns. I do not believe that the law requires the tally to come at all. There is nothing certified to here. Nothing to show that this comes from the proper parties at all. In this case you have a right to send for the certificate. Governor. Mv. Grigsby, the clerk of the court gives the results in this tele- gram of Utica precinct. Mr. Grigsby. That is not any part of his official duty. All he has to do is to do what the statute requires him. They send him duplicate certificate and he makes a copy of it. Governor. I have wired the clei'k asking him whether he has already mailed the second set to this oflice and when ; and if he has not done so to do so at once, advising this office. Mr. Grigsby. That is proper. Go\ernor. We will pass the vote of the Utica precinct for the time being. It was the unanimous vote of the board to carry over for the time being the counting of the vote of the Utica precinct. Governor. The Deering ballots were typewritten in the official form, however, and the board assumes that they did not receive the olficial ballot. Mr. Grigsby. Section 21 of election laws reads : " That in any precinct where the election has been legally called and no official l)allots have been ,receive(l, tlie voters are permitted to write or print their liallots. but the judges of election shall in this event certify to the facts which prevented the use of the official ballots, which certificate must accom- pany and be made a part of the election returns." Governor. INIr. Grigsby, we have the certificate from the judges of election at Deering, together with the " home-made " ballots only. Mr. Grigsby. You must have a list of all the voters who voted at the 1916 election, together with a certificate of the voter. Mr. Pugh. ^A'c have a certificate of the votes and certificate <^f the result from the judges of election; then follows the result of the vote. There is no explanation made as to why these liallots are used instead of the ofiiclal ballot. WICKERSHAM VS. SULZEE. 57 \ Mr. Gkigsby. It -loes not necessarily follow that yon can not count the votes. GovERNOE. We have here a telegram which, of course, is authentic, I know, that for some reason unknown to the clerk of the court ballots failed to reach Deering. Mr. Grigsby. Evidently he does not know anything about them making an -affidavit explaining it. Governor. Would it not be considered as prima facie evidence that the fact that the election board did not use the printed official ballot, they did not have them? Mr. Grigsby. The chances are they would ; yes. Governor. We have already passed the Utica precinct for the present. We ^vill pass the Deering until later. (It was the unanimous vote of the board to pass on the Deering vote later.) ' SOLOMON. The register of voters was not received from the judges of election of the Solomon precinct. Governor. We will proceed to canvas the vote on the certificate of the judges. CAPE NOME- -PILGRI:N£ RIVER. The certificate from the judges designates this voting place as " Iron Creek," but the commissioners' notice shows that it is Pilgrim River No. 1, the polling place being Iron Creek Road House. In the certificate received from the judges of election, the voting precinct was called Iron Creek, evidently an error on the part of the judges. KOYUK TAYLOR CREEK NO. 3 CANDLE CREEK. There was no tally sheet received from the judges of election from Candle •Creek voting precinct. KOBUK COUNCIL. The returns from the judges of election at Council were not accompanied by a t?(\.\Y sheet. \ CHINIK. There was no tally sheet received from the election judges at Chinik polling precinct. FORT CLARENCE ST. MICHAEL NO. 1 NOME NO. 1. There were no tally sheets received from the election judges from Nome, precinct No. 1. NOME, PRECINCT NO. 3 NOME, PRECINCT NO. 2 SHELTON. There were no tally sheets received from the election judges at Shelton. Go\^RNOR. There seems to be no returns from St. Michael, precinct No. 1 ; AVadehampton, precincts Nos. 1 and 2. Mr. Ed. Russell. Is it the intention of the canvassing board to get out the legislative returns as soon as possible? Governor. Yes ; just as soon as we can get the vote in. It being 4 o'clock p. m., the board adjourned until 10 a. m. Monday, January ■22, 1917. The adjourned meeting of the board met at 10 o'clock a. m., Monday, January 22, 1917, and resumed the counting of ballots, all members of the board being present. GOVERNOR. Governor. In reply to telegram sent by the board on January 20 to the clerk •of the court, Adams, at Nome, inquiring if the certificate of election at Utica precinct had been mailed to the board, received the following reply : " Certified copy certificate of election Utica pi-ecinct mailed January 11. Do you wish c-ertifled copy register and oaths judges also? " The counting of the ballots in the third division \\ere first taken up and were ■counted in the following order : 58 WICKBESHAM VS. SULZEB. MATAXUSKA. The board found that there was uo copy on file of the notice of election at Valdez recording precinct and the following telegram was sent to the United States commissioner at Valdez : " Canvassing board has no certified copy of order and notice of election establishing voting precinct in your recording dis- trict. Wire this office to-day, if possible, giving date of order and notice and name of polling place of each voting precinct established by you for general election November 7th, last." NIZINA HOPE ALEUTIAN ISLANDS, VOTING PRECINCT, UNALASKA POLLING PLACE — - BONANZA, CHUSANA RIVER DISTRICT ANCHORAGE NO. 2 — UNGA AFOGNAK KENAI ILIAMNA. The notice of election issued by the United States commissioner for Iliamna recording precinct showed that it had been issued on September 29, 1916. KODIAK NINILCHIC OUZINKIE KNIK — CACHE CREEK GIRDWOOD — SUSITNA LATOUCHE, VALDEZ PRECINCT. The board temporarily passed Latouche for the reason that no notice of election had been received. M'DOUGALL — CHUSANA ROOSEVELT. The precinct election board rejected two ballots for reasons shown thereon. ALLAN COPPER CENTER. The board found that there was no copy on file of the notice of election. The commissioner was wired for the information, the telegram reading as follows: " Canvassing board has no certified copy of order and notice of election estab- lishing voting precinct in your recording district. Wire this office to-day, if possible, giving date of order and notice and name of polling place of each voting precinct established by you for general election November 7th, last." TEIKEL — TIEKHELL. This place being in the Valdez recording precinct was passed temporarily by the board for the reason that no election notice had been received from the United States commissioner of the Valdez recording precinct, in which Tiekhell voting precinct is situated. FIDALGO. These votes were not counted, but passed temporarily, for the same reason that the votes in Tiekhell were passed. SUNRISE GILPATRICK. Tlie board adjourned to meet again at 2 o'clock p. m. The board, after taking recess for lunch, resumed counting of votes at 2 p. m. In the matter of the order calling for election in Valdez recording district, the canvassing board received a telegram in reply to their wire forwarded to United States Connuissioner Love, at Valdez, as follows : " Order for voting precincts November election issued by me August 15 ; copy forwarded your office establishing nine voting precincts — Granby, Cliff, Teikell, Elleman. Landlock. Fidalgo, Latouche, Port Wells, Granite. Location polling places : Granby, office of Granby Consolidated Mining Co., in Valdez Bay ; ClifC, mess house. Cliff mine, Valdez Bay; Teikell, main room, Teikell Road House; Elleniar, main room, store Ellemar Mining Co., in EUemar ; Landlock, bunk house. Three Man Mining Co., Landlock; Fidelgo, warehouse, Fidelgo Alaska Copper Co., Fidelgo Bay ; Latouche, store Beatson Copper Co., Latouche ; Port AVells, store W. C. L. Beyer, W. Golden; Granite, warehouse Granite Gold Mining Co., Granite. " Geo. J. Love, ''Commissioner Valdez Voting Precinct." WICKERSHAM VS. SULZEE. i 59 The cauvassins board wired the commissioner (Love) to mail dniilicate copy of order of election to this office. BONAIVZA (CHITINA DISTRICT) CHIGNIK (TNGA DISTRICT) CHITIXA EYAK JUMBO KATALLA KENNECOTT MOOSE CREEK SELDOVIA STRELNA TAL- KEETN A — ^W A S SII.LA . One ballot was not counted, for the reason that the voter had voted for five Representatives. WILLOW CREEK- — ANCHORAGE NO. 1 CORDOVA— VALDEZ SEWARD M'CARTHY CLIFF (VALDEZ DISTRICT). Tlie following affidavit, subscribed to by L. C. Townsend before Anthony J. Dimoud, notary public, was read : " United States of America, ''Territory of Alaska. " L. C. Townsend. being first duly swoi-n, deposes and says : I am one of the judges of election of the Cliff precinct, within the third judicial division, Terri- tory of Alaska, and acted as such judge of election for the election held Novem- ber 7, 1916. The other judges of election for such precinct were M. V. Fox and Harry Wilson. That on the said 7th of November. 1916, at the Cliff mine, the voting place for said precinct, and before the voting began, I and the others of said judges of election signed tlie form of oath as such judges of election on the cover of the election register, and I took the oaths of the said M. V. Fox and Harry Wilson as such judges of election to honestly, faithfully, and prop- erly perform the duties of judges of election for said precinct, and thereafter I was sworn in in like manner by the said Harry Wilson. That, though unfamiliar with the procedure of election and the manner of making certificate of oaths, neither I nor the said Harry Wilson affixed to the election register any certificates to show that all of the judges of election had taken such oaths, althougli the other two judges of election really made the proper oaths as hereinbefore mentioned according to law." . Governor. This is one of the precincts for whose establishment the canvass- ing board has had no notice, but which is explained in the telegram above re- ceived from George J. Love, LTnited States commissioner for Valdez recording district. GRANITE (VALDEZ RECORDING DISTRICT). The board has received no notice of election, except the telegram of tlie com- missioner. While it appears that the oavh of office should be taken by judges of election was signed by each of the judges, it does not appear that the oath was sub- scribed and sworn to before any specific person. Mr. J. Hellenthal, appearing for Mr. Charles A. Sulzer, objected to the vote of Granite precinct being counted, on the ground that it did not show that the judges of such election in such precinct were judges of election, there being no evidence that they had taken the oath prescribed by law. Governor. The vote will be counted. C. E. Davidson. I want to vote that the returns of Granite be counted, as the intent of the voter is perfectly apparent. ELLEMAR FIDELGO. Mr. J. Hellenthal makes the same objection to the counting of the Fidelgo votes as for the votes at Granite. I would suggest that there may be others of a similar character, and this is an important question. I am giving you this as off-hand opinion, as I might consult authorities and change my mind. I would suggest that the board take all these returns where a similar condition appears and pass counting the vote for the present, until Mr. Grigsby can look it up and give his opinion. Governor. It is now 10 minutes after 4, and I have to open some bids at 4.30. I move that the board adjourn until to-morrow morning at 10 o'clock. In the meantime this question can be submitted to Mr. Grigsby for an opinion. 60 WICKERSHAM VS. SULZER. Mr. Hellenthal. May I ask, in those cases where the count has heen made there seams to be a general situation whicli has frequently happened, whether these votes are passed so they can not be gone over? GovERNOE. No ; the returns are not passed, but what they can be gone over again. Mr. HellenthaIv. The board can still act upon them? Governor. The board has not issued any certificate whatever. The returns are open until the board has certified to them. The board is adjourned until 10 o'clock to-morrow morning. Governor. In the matter of tlie vote in the Granite district, Valdez recording district, Mr. Hellentlial has objected on behalf of Mr. Sulzer to the counting of the vote of Granite precinct, in the Valdez recording district, on the ground that the election board of tliat precinct had not taken any oath, as required by law. Mr. Gragsby. I have not looked up the law on this question especially, but I will look it up and give my opinion by 10 o'clock to-morrow morning. TUESDAY, JANUARY 23, 1917. The board met at 10 o'clock this morning, after adjournment of yesterday, and adjourned until 2 o'clock p. m. to-day. Governor. The board will come to order, time being 2 o'clock p. m.. all mem- bers of the board being present. Mr. Hellenthal. I have here a list of precincts, mostly in the third division. In which I am told the returns are irregular. I have not at the present moment the exact data from which I can give you the returns in each case in the various precincts ; but I will hand you a list of the precincts which I have, over 22 in number, and I will enter a protest against the canvass of the vote or the count- ing of the vote in each of these precincts. THIRD .TUDICIAL DIVISION BONANZA, NIZINA, AFOGNAIv, SUNRISE, SOURDOUGH. GRANBY, TEIKHELL (ON VALDEZ TRAIL), LANDLOCK, SELDOVIA, TEIKEL (ON COPPER RIVER RAILROAD), BONANZA (IN SHUSHANA), WHITE RIVER, HOPE, M'DOLTGALL, MATANUSKA, KENAI, GRANITE, NTTSHUGAK, CHOGGUING. SECOND .TUDICIAL DIVISION DIM, UTICA, DEERING. The reason in each case being that there Avas no evidence before the board that the precincts were duly established or that there was an existing election precinct. Two, that there was no evidence before the board that those who purport to have acted as judges of election were qualified to so act. There being no evidence that they appeared in any case and no evidence of the fact that they have taken the oath and qualified as by law required. Three, that where the official ballots were not used the returns of the judges is not indi- cated. No reason or excuse why they were not used and why other ballots were substituted. These are the principal grounds of protest, although there are others which I have not had time to investigate. I have this list of pre- cincts here. I have not gone over them myself. Many of these objections may not be w^ell founded. The matter is of a good deal of importance to both can- didates, and I would ask the board to hold the result of these precincts in abey- ance until such time as the matter can be investigated, to determine whether they should be counted or should not be counted. Governor. Inasmuch as the board's canvass will not be complete until all the returns are received, no report of the board will be made until the canvass is completed, which probably will be. from present appearances, a month or more. After counting of the votes which have been received, the board will ad- journ from time to time until all the returns are in, if they are ever received, and I do not anticipate there will be any question of their not being received. I do know that some certified returns from Utica, in the second judicial division, are noAv on the Avay, having been mailed .January 11, according to telegram received by the board from the clerk of the second judicial division. Mr. Hellenthal, your objections will be noted and appear in the minutes. Mr. Hellenthal. I do not want to have the matter considered until the votes are fully canvassed by the board. If they have not been canvassed there might be a question whether the court could go back over them. It will be just as easy to note each particular precinct and not count it until the vote can be canvassed and investigated. WICKEBSHAM VS. SULZEE. 61 \ GovEKNOE. The vote canvassed in the vote of the election last November can not be considered as canvassed until the returns are in and reported on by the board. Mr. Hellenthal. I rather think you are right about it, Governor. I think it would probably be safer, in the case of these contested precincts, to delay the count and the canvassing until the matter can be investigated. Mr. Grigsby. If the board can adopt a rule that this tally is not their final judgment until we determine who should be elected from the final total, you can reconsider it at the time you give your certificates. GovEKNOR. I do not consider the vote as being canvassed until after the re- turns are in and reported on by the board. Judge Winn. I join in these protests which Mr. Hellenthal has made, as there is some legal remedy by which this matter could be reached. Everything is new and it has not been investigated thoroughly yet, but if the board had any doubt about it it might be consoling to the board to have the matter tested before announcing final decision or conclusion in the matter. I think the Governor has the right idea. You might go over these returns and not an- nounce them until we have had a chance to investigate. Mr. Hellenthal. I think, as Mr. Grigsby decided, that the board adopt a rule that none of the precincts shall be canvassed until the whole canvass is completed, the board can then consider these matters at any time. Go^^RNOR. The board can do that without a rule. Mr. Grigsby. Go ahead and count the returns and put on the tally sheets with the understanding that you adopt that as your canvass ; then you can say that the canvass is not yet made. Governor. In the case of the third judicial division all the returns are not in, therefore the canvas will not be completed until they are all in. Mr. Hellenthal. In the case of the second division I want to enter a form of protest, in the name of Charles A. Sulzer, against the count of any of the votes in any of the precincts on the ground that in that division, none of the Federal officers and none of the election officers have made the slightest attempt to comply with the acts of the legislature passed in 1915. None of the elections have been held in compliance with any of the provisions of that act in nonce of the returns that were made. Mr. Grigsby. The ballots were printed. Mr. Hellenthal. All the other provisions of the act have been ignored. Governor. Mr. Hellenthal, your objection covers all the second division? Mr. Hellenthal. It covers each precinct separately and all precincts to- gether. Judge Winn. I join in with what Mr. Hellenthal has requested. Go\'ERNOR. Before we act upon this a motion will be made that this is the final report of the canvassing board and that certificate shall be issued to the members found elected according to the board's tabulation of the returns. FIDALGO GRANBT. Wire was sent to C. Parker Smith, United States commissioner at Copper Center recording district, asking him to forward a copy of the order and notice of election in his recording district. The following telegram was received from C. Parker Smith, United States Commissioner at Copper Center : " Seven notices issued under date of August 15 and posted. Also copy sent clerk of court, Valdez. Notice specifies Sour- dough and Copper Center as voting precincts, with boundaries of each. Mail left here about August 19, with notice to officials of action taken." LANDLOCK LATOUCHE TIEKHELL COPPER CENTER SOURDOUGH. Voting precinct in Copper Center recording district, the oath of office taken by judges of election was simply signed by the judges without date being shown. FOURTH JUDICIAL DIVISION. FAIRBANKS, FORT YUKON. POORMAN. SPRUCE CREEK, KANTISHXA (RECORDING DISTRICT. ) The canvassing board found that there was no copy of commissioner's notice or order of election for the Kantishna recording district, so the clerk of the 62 WICKEESHAM VS. SULZER. court of the fourth judicial division at Fairbanks was wired that no notice of election had been received for the Kantishna, Otter, or Koyukuk recording dis- tricts, and to forward same at once. GREENSTONE SETTLES. The canvassing board did not receive order of election from the clerk of the court, and wire was sent requesting that same be forwarded to this office at once. IDITAKOD CRIPPLE ANTAK MOUTH OF CROOKIT LOWER DOME WOODCHOPPER (HOT SPRINGS RECORDING DISTRICT). The notice and order of election establishing Woodchopper voting precinct in Hot Springs recording district, together with election register and tally book, were not received by the canvassing board. The precinct is called Tofty voting precinct. Hot Springs recording district. Governor. What shall be done with these marred ballots? The rule that we have been working under, in order to secure uniformity, has been to reject ballots so marked as illegal. What shall be done in this case? The Board. Follow the rule. Governor. The ballots will be rejected and the counts will be corrected in ac- cordance therewith. The board will stand adjourned until 10 o'clock in the morning. WEDNESDAY, JANUARY 24, 1917. The board came to order, all members being present, and resumed the tallying of the election returns, the following being the order in which they were taken up : Moose Creek, Graehl, Fairbanks Creek, Salchacket. The canvassing board received no order and notice of election from the Sal- chacket voting precinct in the Tana^na recording district, fourth judicial divi- sion, and the vote consequently was passed, and the clerk of the court at Fair-, banks was wired and asked to send a duplicate copy of the oaths and order of election if it could be procured from the commissioner. CHENA UPPER CLEARY EAGLE— HOT SPRINGS ESTER. Ester voting precinct, vote rejected by the election board because a name had been written in the ballot, as provided by law, was counted by the canvassing board. LOWER GOLDSTREAM PEDRO LOWER CLEARY LITTLE ELDERADO — FISH CREEK WEST FORK BROOKS — GILMOEE UPPER GOLDSTREAM CHICKEN CREEK WOODCHOPPER — STEEL CREEK FRANKLIN JACK WADE — LOUDEN NULATO (NULATO RECORDING DISTRICT ) — ^RAMPART. The canvassing board received no notice of election from Rampart recording district. The clerk of the court of the Fourth Judicial Division was telegraphed in relation thereto. OPHIR. The board took a recess for lunch, to meet again at 2 p. m. 2. p. m. The board reassembled to continue the tally of the vote in the fourth division, the following being the order in which they were taken up : Railroad, Upper Dome, Vault. In Vault voting precinct, Fairbanks recording district, there was no notice of election or tally book received by the canvassing board nor were the cer- tificates of judges of election to the election returns signed by the election judges. M'GRATH (mount M'KINLEY RECORDING DISTRICT). The vote of McGrath, in Mount McKinley recording district, was passed for the time being by the board for the reason that some of the returns were not complete, and the clerk of the court of the Fourth Judicial Division was wired in regard to same. WIOKEKSHAM VS. SULZEK. 6$ % TOKOTNA. The tally of the votes in Tokotna was passed for the present by the board for the same reasons as that of McGrath were passed. TAN ANA — EUEEKA (HOT SPRINGS EECOEDING DISTEICT). One ballot counted by the election board disallowed by the canvassing board. DEADWOOD BONNrFIELD. At Bonnifield sample ballots were used, but there were no affidavits from the judges as to why they were used, but a letter from the clerk of the court says that they sent official ballots but sample ballots were used instead. CIECLE — FOET GIBSON ( TAN ANA DISTEICT ). No notice of election or election order was received by the canvassing board. United States Commissioner J. C. Dehn was wired relative thereto. MILLER HOUSE LONG NENANA TOLSTOI RUBY. The board proceeded to check up the tally of the votes from St. Michael No. 2, and Wadehampton Nos. 1 and 2, of the Second Judicial Division, which were received this day. ST. MICHAEL NO. 2. The tally sheets or oaths of judges of election of St. Michael No. 2 were not received with the returns. * GovEENOE. We will proceed to count the votes of St. Michael No. 2. WADEHAMPTON NO. 1. No tally sheet or oaths of judges were received by the canvassing board from the judges of election. WADEHAMPTON NO. 2. No tally sheet or oaths of judges were received from the judges of election by the canvassing board. Governor. I make the motion that the board adjourn subject to call. C. E. Davidson. Second the motion. GovEENOE. The board moved and seconded that we adjourn subject to call. Goveenoe's Office, Juneau, Alaska, Januaey 31, 1917. The canvassing board met at 2 o'clock p. m., after the adjourned meeting of January 19, to contiiuie the canvass of the ballots from the November, 1916, election. All members of the board present. Governor. We have notice and order of election from Valdez precinct. I have telegrams from the clerk of the court of the fourth judicial division, Fairbanks, stating that he had mailed original notice and order of election for Fort Gibbon voting precinct, Koyukuk recording district, and that he instructed all other United States commissioners by wire to forward the same to the board immediately. Kantashina, the clerk reported, will be slow, as there is no mail or telegraph service there. The board also received telegram from United States Commissioner Dehn, stating that a notice and order of election had been issued and posted on ' August 28 and that a copy of the notice had been given to the judges on the morning of election and that a certified copy of the notice was being forwarded by mail to the board at Juneau. The board also received telegram from George W. Ledger, United States commissioner at Rampart, stating that he had mailed by registered letter on January 25 a letter containing a certified copy of the notice and order of election dated September 7, 1916. 64 WICKEESHAM VS. SULZEE. A telegram was also received from A. J. Griffin, United States conmiissioner of Tanana precinct, stating that he had forwarded by mail on January 26 a certified copy of the order and notice of election for Tanana precinct, whick was issued by his predecessor. Commissioner James, on September 6. With respect to the order and notice of election issued by the commissiouei" of Otter precinct, the clerk of the fourth judicial division wired the board on. January 24 that he had notified the commissioner at Otter by wire to forward copy of the order and notice of election to the board. The canvassing board also received the following telegram from the clerk of the court of the fourth judicial division, Fairbanks : " Have register and certificate of result and oaths of judges of McGrath and Tacotna precincts, but no tally sheets. Commissioner Green advised me supplies did not reach them in time. He borrowed ballots from Commissioner Vinal. Above duplicate re- turns appear properly and carefully prepared." AVith respect to the order and notice of election in Otter precinct, the board received a copy of the following telegram addressed by the Clerk of the Court Clark at Fairbanks to Judge Bunnell, now in Juneau : " Copy order and notice of election Otter attached to voucher 24. My account mailed you. Canvassing: board can use copy attached in duplicate voucher if they want it." We have some information concerning all the voting precincts except Kanti- shina and Port Wells, which we have discovered is not here. We have knowl- edge of the creation of all these precincts except Kantishina. The canvassing board received duplicate copies of the order and notice of election in Yaldez recording district and Copper Center recording district. KOGGIUNG. At the time of appointing judges of election there was only one man recorded and he is not a resident, consequently there was no election held. Thus there- was no possibility of any one outside of the village of Naknak participating ia the election, as the river was full of floating ice and it was impossible to cross> (Signed) Wm. Nielson, United States Commissioner. CHOGIUNG. C. E. Davidson. I move that we lay over these ballots until to-morrow and ask Mr. Grigsby for his official opinion on the three precincts, namely, Naknak,, Nushagak, and Chogiung. Motion unanimously carried. GovEENOR. We have notices from the commissioner or clerk of all the voting precincts except Otter. At Otter the clerk instructed the commissioner at Otter by wire to forward copy of order and notice of election. Mr. Geigsby. Is there any part of Alaska where they did not use the registra- tion book except the second division? GovEENOE. Yes ; Tocotna. GovEENOR. We will proceed with the tally of votes, first in order being McGrath. Rampart, Fort Gibbon, Salchakat, Richardson, Wiseman (Koyukuk recording district), Coldfoot (Kuskokwin recording district), Bettles, Tacotna, and Georgetown. GovEENOE. There were no returns received from Port Wells-voting predict in Valdez recording district, and the board wired the clerk of the court for in- formation concerning such returns; that is to say, if any have been received by him. We have no answer yet. The board adjourned to meet again at 2 o'clock p. m. to-morrow. The canvassing board met at 2 o'clock p. m., February 1, after adjournment of vesterday. All members present. Mr. Geigsby. On behalf of Mr. Hellenthal, representing Mr. C. A. Sulzer, I protest the vote from the Bristol Bay precincts, Chogiung and Nushigak, in the third division, on the ground that the ballots returned are not the official ballots prescribed by the statute, and that no certificate of judges in either of said pre- cincts accompanied the returns, explaining why the official ballots were not used. T T T ^ INIr. Geigsby. As far as the form of the ballots is concerned, I do not see any reason to throw them out. Mr. PuGH. ]Mr. Grigsby, you mean to say that we are to canvass the three precincts, namely, Nushagak, Chogiung, and Naknek? Mr. Geigsby. Yes. WICKERSHAM VS. SULZER. 65 t GovEKNOR. We will then proceed to count these ballots. Mr. Geigsby. They are legal ballots when the voters make their own ballot. The law provides that if the voter is not provided with official ballots they can make their own ballots. If the official ballots are not provided, there is no way of their knowing how or in what order to make the ballots. Mr. C. E. Davidson. If that is the law, I think it should be changed, as it gives an awful chance for fraud. Mr. Gkigsby. I think they should change the law so that the official ballots should be used everywhere. Goveenoe. We ought to have a law absolutely pi-escribing the universal use of the official ballot, and if the precinct does not have the official ballot, then the precinct must lose its vote. GovEEA'OE. With reference to the vote in Port Wells voting precinct, in the Valdez recording district, I wired the clerk of the court last night and received the following telegram from the clerk of the court : " No election held Port Wells,, Valdez recording district. Also no election held Sanak, Unga recording district j Koggiung. Kochak recording district." GovEKNOE. I want to say to the board that a request has been made by Mr. Hunt, representing Hellenthal .fc Hellenthal, to examine all the votes that' have been received by the canvassing board for the purpose of finding what they may deem irregularities, under the supervision of this office. The board has dis- cussed this matter, and finds no objection to it, but want to announce that if anybody representing Mr. Wickersham or any one of the othe'r candidates for election wants to check these returns it must be done jointly, and at this time, because we can not have the work of this office delayed by having different people coming in and making the same request. Some one will be present from the governor's office at all times and there will be some one present to represent the surveyor general. I want to all'ord all the assistance possible to all parties, but this examination will be made under the strict supervision of this office, and if there is anybody else who wants to make this examination at the same time they are perfectly willing to do so. GovEENOR. I trust that this will meet with the sanction of the board. The board was un-animous in their assent to allow the inspection of the elec- tion returns, ballots, etc., under the supervision of the governor's office. GovEENOE. We will take up the Ghoggiung precinct, Nakuek, and Nushagak, This winds up the third division. Mr. Ed. Russell. Outside of the Reindeer precinct there is some return here from all other precincts; that is, the actual- returns are in from all other pre- cincts outside of Raindeer? GovEENOE. I don't think that Reindeer precinct was ever established. There is nothing to show that it was ever established. If it was In the Bristol Bay district, we have no notice or anything to show that it was established. The board adjourned subject to call. Goveenoe's Office, Febeuaey 16, 1917. The canvassing board met this morning at 10 o'clock at the request of the governor. Go^'EENOE. If we are getting the opinion from the territorial counsel on the irregularities from certain precincts, it will be only just and proper as well as for the protection of this board that we submit to the territorial counsel a list of all the irregularities noted and ask for his opinion. Not to segregate two or three but to take them all as they occur, for the protection of the board. The following list of irregularities I will submit to the territorial counsel and ask tor his opinion in writing : Where judges of election failed to execute oath. AVhere one judge swore the other two, Ibut was not himself sworn. Where all three judges signed the oath form, and one signed the jurat. Where all three judges signed the oath form, and two of them signed jurat. Where no registra- tion book was used. Where registration book was used, but names of voters were written therein by a member of the election board instead of by the voters themselves. Where registration book was not certified by the election board. Where no register of votes was used, in addition to the registration book. Where the election board do not make a duplicate return or certificate of the election and forward same to the clerk of the district court. Where (as in the second division) no oaths of election officers were with the returns sent to the governor's 13289—17 5 66 WICKERSHAM VS. SULZER. office, but the clerk of the court claims to have furnished oath forms to all the boards and that their oaths are on file in his office. Where the election hoard do not sign the certificate of result in place of register or registration book. Where the election board do not fill in the certificate of result nor sign same. Where the only record of result is the tally sheets sent in by the board, only one of which is certified. Where unofficial ballots were used and uo explanation made by election board as to why they were used. Where " sample ballots " were used (furnished by clerk of court) instead of the official bfillots, ;iud no explanation given. Where "workers' ballots" were used instead of official ballots, and no explanation made by the election board. Where " workers' bal- lots " were used instead of official ballots (the ballots used being the name of a political party) and explanation made hj election board as to their use. Where election returns are in, but canvassing board has no copy of commissioner's notice and order of election. Governor. I will prepare a letter and address it to the Territorial counsel and ask him to give an opinion on all points covered by these questions. The board adjourned, subject to call. Goveenoe's Office, Febbuaby 28, 1917. The canvassing board met this afternoon at 2 o'clock at the request of the governor. Governor. The legislative returns for the first judicial division will now be taken up. Mr. Fox will read the vote of the legislative ticket. Read the returns on the legislative ticket, the vote for road supervisors, the wet-and-dry vote, and the eight-hour law. ROAD SUPERVISORS. Peter S. Early jl ^ 1, 847 Ed. C. Hurlbert 2, 042 Mr. Davidson. I move that we issue certificate of election to Mr. Hurlbert. Mr. PuGH. Motion seconded. Governor. It is moved and seconded that the certificate of election be issued to Ed. C. Hurlbert, it having been shown that Mr. Hurlbert received the highest number of votes in the first division for the office of road supervisor. Motion unanimously carried. Governor. The certificate of election will be issued by the secretaiy. The above motion will remain the same for senators, representatives, and road supervisors, but for that covering the attorney general, the wet-and-dry vote, and the eight-hour law will be covered for the four divisions in one. Eight-hour law : For, 3,635 ; against, 573. Wet, 1,669 ; dry, 2,941. SENATOR. John F. Green 382 Jas. R. Heckman 2, 097 J. M. Tanner 1,880 REPRESENTATIVES . Carl Arola 383 Nels Anderson 1, 487 .John Z. Bayless 1, 596 Monte Benson 1,955 W. W. Casey 1,943 Jas. J. Connors 1, 562 .John J. Fahey 388 James Freeburn 1,791 John G. Held 2, 043 Chas. Helsing 514 Peter C. McCormick 1, 822 ATTORNEY GENERAL. .Tohn H. Cobb 1,326 Geo. B. Grigsby 1, 528 Geo. D. Schofield 1, 325 WIOKERSHAM VS. SULZEE. * 67 GoA'ERNOE. The count shows that Jas. R. Heckman received the highest num- ber of votes for Senator for the First Judicial Division and Monte Benson, John G. Heid, W. W. Casey, and Peter C. McCormick for Members of the House. A certificate will not be necessary in the case of Mr. Heid, unfortu- nately, he having died, as you all know. C. E. Davidson. I move that certificates be issued to the Members just names. Motion seconded by Mr. Pugh. Governor. It is moved and seconded that certificates of election be issued to Jas. R. Heckman as Senator from the First Judicial Division, also to Monte Benson, W. W. Casey, and Peter C. McCormick as Members of the House of the First Judicial Division. Motion unanimously carried. Governor. The certificates will be duly issued. Governor. We will now take up the Second Judicial Division, with the ex- ception of the votes cast for Phil Corrigan and Thos. M. Reed. SENATOR. Thos. McGann 605 Martin F. Moran 343 John Sundback 729 REPRESENTATIVES. A. A. Allen 796 Andy Anderson 716 Nate H. Coombs 791 Jas. P. Daly 809 Chas. D. .Jones 622 Victor A. .Tulien 436 Mike Young 431 ATTORNEY GENERAL. John H. Cobb : 190 Geo. B. Grigsby 1, 142 Geo. D. Schofield 313 ROAD SUPERVISORS. Barney Gibney 340 W. J. Rowe 653 John A. Wilson 689 Wet, 591 ; dry, 1,025. Eight-hour law : Yes, 995 ; No, 248. Scattering votes, 2. Mr. Pugh. I make a motion that certificates be issued to those who secured the highest number of votes. C. E. Davidson. Seconded motion. Governor. It is moved and seconded that certificates of election be issued to John Sundback as Senator, and Nate H. Coombs, Jas. P. Daly, and A. A. Allen, as Representatives for the Territorial Legislature from the Second Judi- cial Division. Also certificate of election to John A. Wilson, as road commis- sioner for the Second Judicial Division. MotiQii unanimously carried. The mottion will be the same for attorney general, also wet and dry and the eight-hour law, for the second division as in the first division. Governor. We will now take up the third judicial division, with the exception of the votes cast for Thomas H. Holland and Joseph Murray. attorney general. John H. Cobb 1, 091 George B. Grigsby 1, 790 George Schofield 854 senator. George Dooley 965 John W. Frame 1, 038 68 WICKERSHAM VS. SULZEE. E. F. German 731 John Rouan 1, 172 REPRESENTATIVES. Frank B. Cannon 1, 837 Charles M. Day : 1, 408 R. E. Hegner 777 W. J. Henry 514 William P. Henry 874 R. R. Hunter 891 Charles McCollum 1, 210 John Noon 1, 212 Thomas C. Price 1, 394 KOAD SUPERVISOES. Joseph C. Deringer 471 Thomas H. Jetter 1, 030 James E. Wilson 1, 106 Ed. Wood 1,080 Wet, 1,418 ; dry, 2,556. Eight-hour law : Yes, 3,041 ; no, 381. Scattering, 11. Mr. PuGH. I move that certificates be issued to those securing the highest number of votes as shown in the returns. Mr. Davidson. Motion seconded. Governor. It is moved and seconded that certificates of election be issued to John Ronan, senator from the third judicial division, and to Charles M. Day, Thomas C. Price, and Frank B. Cannon, as representatives from the third judi- cial division, and to James E. Wilson as road commissioner. The certificates of the vote for attorney general, wet and dry, and the eight- hour law will be included in the general certificate from the four judicial divisions. Governor. We will now take up the fourth judicial division, without any exceptions. ATTORNEY GENERAL. John H. Cobb 689 George B. Grigsby 1,193 George Schofield 1, 492 SENATOR. Dan McCabe 557 Thomas A. McGowan 1, 255 Dan A. Sutherland 1, 789 EEPEESENTATrVES. Z. C. Bean 302 W. T. Burns 1,610 Earnest B. Collins 1,202 John W. Dunn 985 Joe K. Green 342 L. C. Hess 1, 5^ George W. Huev 301 A. M. Kilgore 796 George W. Ledger 406 C. M. Monaghan 350 Andrew Nerland 1, 391 C. K. Snow 1, 469 W. A. Vinal 421 Daniel Webster 762 Lars Westenvik 420 ROAD SUPERVISORS. Peter Jensen 927 H. H. Ross 1, 190 WICKEESHAM VS. SULZER. % 69 Melvin R. Sabin 965 Peter Steil 271 Wet, 1,131 ; dry, 2.520. Eight-hour haw : Yes. 2,731 ; no, 578. Mr. PuGH. I move that certificates be issued to those securing the highest number of votes. Mr. Davidson. Motion seconded. GovEENOR. It is moved and seconded that certificates of election be issued to Dan A. Sutherland, senator from the fourth judicial division, and to W. T. Burns, L. C. Hess, Andrew Nerland, and C. K, Snow as representatives from the fourth judicial division, and to H. H. Ross as road commissioner. Motion unanimously caiTied. GovEENOE. We will compile the vote for the four judicial divisions for attorney general, the result being : John H. Cobb 3,276 Geo. B. Grigsby 5,544 Geo. Schofield 3, 954 Mr. Davidson. I move that certificate be issued to Mr. Grigsby. Mr. PuGH. Motion seconded. GovERNOE. It is moved and seconded that certificate be issued to the attorney general elected. Motion unanimously carried . Certificate will be duly issued. GovEENOR. The board now will begin the tally of the votes of Kantishna, in the fourth judicial division, and of Flat, Discovery, and Dikeman, voting precincts in the fourth division. Notice and order of election for Rampart, Fort Gibbon, Tanana, and Koyukuk have all been received since our last meeting. We have not received the order ;ind notice of election for Otter precinct as yet. I have a telegram stating that it has been mailed by the clerk of the court of the fourth division. It has l3een received by the clerk of the court and mailed, but has not yet arrived. DIKEMAN DISCO\'EEY FLAT KANTISHNA. GovEENOE. Some objections have been made to the board as to the counting ■of votes in certain precincts. As you know the board submitted a list of 22 ■questions to the Territorial counsel as to certain alleged irregularities and technicalities, and I received only yesterday two opinions from the Territorial counsel. I have read them both and examined them as far as> time would permit, but Gen. Davidson and Collector Pugh have not examined them yet. Mr. Pugh. I move that we adjourn until to-morrow. Governor. Mr. Grigsby, have you any duplicate copies of these opinions you ■iled with me yesterday? Mr. Grigsby. I have one or two copies ; yes. (Governor. Can you let Gen. Davidson and Mr. Pugh have one? Mr. Grigsby. Yes. Go^'ERNOR. The board will adjourn until to-morrow at 2 o'clock p. m. governor's office, MARCH 1, 1917. Governor. The board will come to order. There seems to be only one more l)recinct that has not been tallied, namely, Utica. Mr. Davidson. I move that we tally the Utica precinct at this time. Mr. Pugh. Motion seconded. Goveenor. It has been moved and seconded that the board proceed to compile and tabulate the vote for Utica in the Fairhaven recording district. Motion carried. Governor. A member of the legislature from the second division whom I met on the street to-day, asked me if we had tabulated the Utica precinct. He said that he understood that Utica voting precinct had not been regularly estab- lished. I want to say that the Utica voting precinct has been regularly estab- lished according to notice and order of election received by this office. The notice and order of election establishing Utica precinct in the Fairhaven re- ■cording district is dated at Candle, August 28, 1916. The following wire from 70 wiGi5:pBsg:AM vs. sulzeb. clerk of court was received : " We received a certified copy of certificate of election of Utica, mailed January 11." I have telegram from Adams, clerk of the court of the secoud division, dated January 25, stating : " Forms of oaths of judges of election and full printed instructions included in election papers of each precinct in this division forwarded to the several commissioners. Oaths returned for every precinct." Let it be noted that the ballots from Utica voting precinct are not the regular official ballots, but wei-e ballots prepared for use in that precinct following the form of the Australian ballot, and that the ballots nor any returns connected with the votes in Utica precinct do not show the certificate required by section 21, chapter 25 of Session Laws of Alaska for 1915. UTICA. Mr. Davidson. Mr. Chairman, I have giveu a great deal of study to this ques- tion that we have before us, and I have come to the conclusion after due de- liberation that this is a ministerial body and not a judicial one. and that the questions of law are not for us to decide, and I therefore move that we finish the tally of the sheets and give certificates to all the candidates receiving the greatest number of votes, excepting those upon which we passed yesterday. Governor. It has been regularly moved and seconded that the board finish the compiling and tabulation of the returns, and issue certificates to those persons who were candidates in the late election and who have not yet re- ceived certificates, but who are shown to have received the greatest number of votes in the respective judicial divisions and in the Territory at large. Are you ready for the question? Mr. PuGH. Question. Mr. Grigsby. Before you put the motion, Mr. Chairman, I would like the privilege of notifying those who are acting for Mr. Sulzer, that they may take such action as necessary before a certificate is issued. I would like to ask if the character of this motion, if carried, would be final, before proceedings could be taken. There might be proceedings for injunction, enjoining the count of what I consider illegal ballots, and if I could have it intimated to me what the intended act of the board is, I could very shortly notify the board. Mr. DAvrosoN. I will amend my motion by saying that to-morrow morniug we will issue certificates, at 10 o'clock. Mr. Grigsby. If you put it this way, it Avould give us a better idea that it is the intention of the board that these votes should be counted. Tlien. if it car- ries, another motion would have to be made that the certificates should be issued. There will then be an intimation of your intention, which we can act on. If j'ou put that motion, I will let you know what they intend doing. Mr. Davidson. I will withdraw the otlier motion, and move that it is the intention of this board that these yotgs shall be counted and certificates issued in accordance therewith. Governor. Are you ready for the question? Mr. PuGH. Question. Governor. Gentlemen of the canvassing board, Mr. Attorney General, mem- bers of the legislature now present, and members of the press : I want to say to you, and I want to say it emphatically, that this canvassing board has been placed in a most perplexing position by reason of the fact that it is a partisan canvassing board, but speaking for myself and a majority of the board, I would like to state that the question of partisan politics has not entered into the de- liberations of this board, notwithstanding the criticisms and the gratuitous advice which have been received from time to time from people of both the dominant parties. I say for mj'self, and also for a majority of the board, that we have been actuated solely by a desire to perform our strict duty in accordance with our oaths and the expressed will of the majority of the people of Alaska, and signified in their vote at the general election of November 7 last. With some people, at least, country is above party. With some people, and a great many people, principle is above mere partisan, temporary gain or ad- vantage. I do not conceive it to be the duty of this board, and I have given careful thought to every phase of the vexatious question that has arisen, to enter into the legal aspects of the vote at the last election. As my colleague, the surveyor general, lias stated, this body is a ministerial body; it is not a judicial tribunal ; and if there be any who are not satisfied with the findings of the board, they have the recourse of the courts of the land, and they also have, in the question of the election of a Delegate to Congress, the court of last resort^ the House of Representatives of the Congress of the United States. WICKEBSHAM VS. SULZEE. \ 71 I know something about this Territory. I know the conditions that obtain in its remotest precincts. During my 20 years' residence in Alaska I have lived in two remote precincts. I know the handicaps that are before our people living in such places, where the means of transportation are extremely limited, and I conceive it to be at least my duty to take the most liberal view of these conditions, to the end that the people of those precincts should not be deprived of their privilege of expressing their choice for members of the legislature and Delegate to Congress by their vote ; and they should not be deprived ol; that privilege. I do not believe it to be the province of this board to pass upon the legal questions, and after much thought I have taken this step. I believe I am acting solely in a conscientious lielief. and have satisfied myself that I am perform- ing a duty that I owe to the people of Alaska. I have every respect and confidence in the legal ability of the Attorney Gen- eral, and my action in this, in voting that those candidates receiving a majority of the votes, Irrespective of alleged illegalities or technicalities, should receive certificates, is not a reflection upon that officer. The Attorney General has ad- vised us. We have considered his advice ; and we believe, as I have stated, that we should not pass upon the legality of these votes : but I may here express my ex parte opinion that the Territorial election law is invalid. However, that is neither here nor there. In conclusion, there are judicial tribunals which may settle this question ; and let me express the hope, if we have "erred, that it may be settled right. If we have erred, I for my part am quite willing to accept the responsibility in every respect. Mr. Davidson. I just want to say this, Mr. Chairman, that I indorse every- thing that you have said, and that the sentiments you have expressed are my sentiments. Governor. All in favor of the motion say "Aye." The governor and Mr. Davidson voted aye. Governor. All opposed will say " Nay." Mr. Pugh voted nay. Governor. The motion is carried. Mr. Russell. I have in my letter file authority from .Judge Wickersham to represent him before this canvassing board and to employ a lawyer if neces- sary. He also wrote that it would be unnecessary to embarrass the board in any way, as he had every confidence in the integrity and honesty of this can- vassing board, and for that reason he did not want to appear before them to embarrass them in arriving at a just result. I want to thank you for the returns you have given me, and I want to say if at any time there is anything I can do. Judge Wickersham or my paper, I would be glad to do It. Governor. Mr. Russell, we thank you for the expression, but the majority of the board is not entitled to the thanks of anybody. I speak for myself and I am sure I speak for Gen. Davidson. We have simply done our duty as we saw it, and we are entitled to no thanks. Mr. Pugh. I move that we adjourn until to-morrow morning at 10 o'clock. Governor. There is nothing in the course of my official life that I have had that I have given more attention to, and weighing from all its various angles in every way, than I have to this canvass. If I am wrong, I am willing to suffer for it. I am willing to accept every responsibility of my action. The board will adjourn until 10 o'clock to-morrow morning. FRIDAY MORNING, MARCH 2, 1917. Governor. -The board met at 10 o'clock, after the adjourned meeting of yes- terday. There were present Gov. Strong and Mr. Pugh, Mr. Davidson being absent. Mr. Pugh. I make a motion that we adjourn until 4 o'clock this afternoon. Governor. It is regularly moved and seconded that the board adjourn until 4 o'clock this afternoon. Motion carried. Governor's Office, March 2, 1917. The canvassing board met at 4 o'clock p. m., all membei-s being present. Go\-ERNOR. The board has been served with an alternative writ of mandamus in the case of the Territory of Alaska on the relation of Charles A. Sulzer. and Charles A. Sulzer. relator and plaintiff, v. The Canvassing Board for the Ter- ritory of Alaska, consisting of J. F. A. Strong, Charles p]. Davidson, and .Tohn F. Pugh, defendants. 72 WICKEESHAM VS. SULZEB. On motion duly made and seconded, it was voted to adjourn the meeting of the hoard until Saturday, March 3. at 10 o'clock a. m. SATURDAY. MARCH .1. The board met at 10 o'clock a. m., all members being present. Mr. Davidson. I move, Mr. Cliairman, tliat we issue certificates to the two members of the House, namely, Phil Corrigan, of the second division, and James Murray, of the third division. Mr. PuGH. Motion seconded. Governor. It has been duly moved and seconded that the board proceed to issue certificates of election to Phil Corrigan, of the second judicial division, as representative in the Territorial Legislature from the second judicial division, and Joseph Murray, as representative in the Territorial Legislature from the third judicial division. Governor. All in favor of the motion say " Aye." All vote aye. Motion carried. Mr. PuGH. I move that the board adjourn subject to call by the chairman of the board. Mr. Davidson. Motion seconded. Governor. The motion is carried. governor's office, march 22, 1917. The canvassing board met at 9.30 a. m. Thursday, March 22, 1917, upon call of the governor, all members of the board being present. Governor. I will make this announcement, that the board has received a petition in the case of The Territory of Alaska on the relation of Charles A. Sulzer and Charles A. Sulzer relator and plaintiff: v. the canvassing board, con- sisting of J. F. A. Strong, Charles E. Davidson and J. E". Pugh, from the judge of the district court for the district of Alaska, in which the court holds that the ballots in the voting precincts of Choggiung, Deering, Nushagak, Utica, Bonnifield, and Vault should be rejected, allowing the count for the precinct of Nizina, the court further deciding that with these votes rejected Mr. Wicker- sham would have 6.421 votes and Mr. Sulzer 6,440 votes, the court adding, in which event the certificate of election should go not to Wicker sham but to Sulzer. I have also to place before the board a protest, signed by Emery Valen- tine, against the counting of returns and the reasons therefor in about 47 vot- ing precincts, a copy of which is made a part of the records. Mr. Davidson. I move that we address a communication to the honorable court and attach a copy of this protest and ask for instructions as to what our course should be. Governor. What are we going to do with this protest? We have got to make some disposition of it. If we had counsel we could be represented by counsel. This board is not responsible for the filing of this protest in anyway, shape, or form, the question before the board is. what shall be done with it? Can we reject it? Have we a right to reject it? Have we a right to say to the l»rotestant, it is none of his business or there is no merit in his statement? I do not think we have. Mr. Pugh. If it is agreeable to the board, I will have Mr. Smiser get the case postponed until- to-morrow. Mr. Davidson. It is all right with me, Governor. It seems to me the best way to expedite matters would be to write a letter to the court and say that we have been served with this protest, that we do not know what to do with it. AVe have no counsel, therefore we simply submit it to the court. We have no reply to make to this opinion that I know of, and I think that is what we better do. It will relieve the board in this situation. Mr. Pugh. The point I am getting at is whether the board has a right to bring it into court or not. Governor. I do not know what to do with it. Mr. Pugh. My opinion is that I do not think we have a right to take it into court, Mr. Davidson. You can take anything to court. The court will tell you whether it is the proper place or not. Governor. I think it is perfectly proper to ask the court for instructions. It seems to me it would be the proper thing for those other people to go into court. WICKERSHAM VS. SULZER. 73 Tn tlie first instance. I believe tliat the canvassing hoard is the proper body ^^•ith which to file this protest. I thinlc that is right, hnt there may be some ' other steps that the protestants should take. It shoiild be filed first with this t»oard. Mr. Davidson. I ask for the question. Governor. Question. All in favor of the question will say " Aye. The governor and Mr. Davidson voted aye. Mr. Pugh voted nay. Motion carried. ^, . -, , ^^ Governor We will prepare a letter to present to the court and ask for instructions in regard to the protest. Is there any action to be taken on the ■opinion given by the court? In other words, you have no amended answer to make'' Mr.' Davidson and Mr. Pugh. No; there is no amended answer to make. Mr. Pugh. I move that we adjourn. Mr. Davidson. INIotion seconded. Go^-ERNOR. The board will stand adjourned subject to call. .1. F. A. Strong, Governor, Charles E. Davidson, Surveyor General, ,T. F. Pugh, Collector of Customs, Canvassing Board. governor's office, march 24. 191". The canvassing board met at 10 a. m. on this date, in pursuance to a per- -emptorv writ of mandamus issued out of the district court, division No.-l, at Juneau commanding the board to forthwith convene as a canvassing board for the Territorv of Alaska and to reject the votes of Choggiung, Deering, ^'ushagak, Utica.' Bonnifield. and Vault, and the court has further found " that Avith the exception of making the deduction aforesaid and of issuing said certificate said board has completed the canvass," the court commanding the hoard to issue a certificate of election to Charles A. Sulzer as having received the greatest number of votes for Delegate to Congress from Alaska, and that the certificate be made in the usual form as by law provided. Governor. The law provides no form of certificate and never has. 1 he certificate we have used has been simply one drawn up by this office. The purpose of the meeting has been stated, what do you want to do about it? Mr Pugh. I move that we start to take off the tally sheets the vote for Delegate as indicated in the writ, namely, Choggiung, Deering, Nushagak, Utica, Bonnifield, Vault. Mr. Davidson. Motion seconded. Governor. It has been regularly moved and seconded that the tally sheets should be corrected to comply with the command of the court, that is, the votes', so far as Delegate, be eliminated— 69 votes should be deducted from .J as. Wickersham; 19 votes should be deducted from Chas. A. Sulzer. Mr. Pugh. I move that we issue certificate in the same form as we did t^AO years ago. Mr. Davidson. Motion seconded. ., - i i i Governor. It has been regularly moved and seconded that this board do therefore issue a certificate of election to Charles A. Sulzer in accordance with the above peremptorv writ of mandamus, and that also, in accordance witu thp aforesaid writ of mandamus, the certificate be issued in the usual torm. Governor. It had better be stated that while the writ declares that the certm- ^ cate be in the usual form as by law provided, the law provides for no form. The form heretofore used has been one that was provided by the canvassing board. Governor. All in favor of the motion say "Aye. ' Motion unanimously carried. <- ^^ +i ^ Governor. This peremtory writ of mandamus should be made a part ot nie Mr Davidson. I move that the peremptory Avrit, all other writs, copies of all opinions, and court decisions, together with all correspondence with reference i-Jiereto, received by the board be made a part of the records ot this board. Mr. Pugh. Motion seconded. „„^„„„.e Governor It is moved and seconded that the peremptory writ of mandamus issued out of the court for the District of Alaska division No. 1. Juneau, Marcn 74 WICKEESHAM VS. SULZER. 23, together with all other writs, opinions, court decisions, and all correspond- ence relating thereto, be made a part of this record. All those in favor will say "Aye." Unanimously carried. Mr. PuGH. I move that the board adojurn. Mr. Davidson. Motion seconded. Governor. It is moved and seconded that the board adjourn. All in favor will say "Aye." Unanimous that the board adjourn. UisT OF Irregularities in Election Returns as Found by a Recheck Made by Representative of Hellenthal & Hellenthal. The following is a list of questions in the hunt for irregularities : 1. Name of precinct. 2. Are ballots used on white paper? 3. Are ballots headed "Official ballots"? 4. Are instructions at top of ballot? 5. Are the names of candidates printed alphabetically? 6. Do ballots contain blank lines required by law? 7. Are names separated by blank line with space in margili for " X "? 8. Are the words " Official ballots " printed on inside and back of ballot? 9. Are words for " Delegate to Congress " and " Vote for one " at top of list? 10. Are first names at top of ballot candidates for Delegate to Congress? 11. Were official ballots u.sed? 12. Did proper certificates accompany unofficial ballots? 13. Was duplicate certificate of result returned with register, ballots, and affida.vits ? 14. Is there anything to show that duplicate was mailed to the clerk of court in division where precinct was situated? 15. Did clerk mail duplicate to governor? 16. Was proper registration book kept and returned? 17. Have marred ballots been returned? 18. Have more than two marred ballots for Delegate vote been returned? 19. Were there two judges of election? 20. Do the returns show that judges took proper oath? 21. Were there three clerks? 22. Do the returns show that clerks took proper oath? 23. Number of votes for Sulzer. 24. Number of votes for Wickersham. 25. Was copy of commissioners' order establishing precincts and notice of election forwarded to the governor's office? third division. Anchorage, No. 1. — No oaths taken by judges of election. No registration book. Certificate of registration not signed or filled out. Anchorage, N^o. 2. — No registration book. Certificate of registration not signed. Afognak. — No registration book. Allen. — No registration book. Aleutian Islands. — No registration book. Bonanza {Chitina district). — No registration book. Bonanza (White River). — No registration book. Certificates of judges not sworn to. Chignik. — No registration book. Chisana. — No registration book. Chitina. — No registration book. Choggiung. — No registration book. 24 ballots not official. 4 regular Demo- cratic ballots. ' Cache Creek. — No registration book. Cordova. — No registration book. Copper Center. — No registration book. Cliff. — No registration book. Oaths of judges not sworn to. Ellemar. — Oaths of judges signed, but the seal of notary not attached. Eiialc. — No registration book. Fidalgo. — No registration book. Oaths of judges not sworn to. Gilpatrick. — No registration book. Clerk's returns shows name of voting place as " Moose Pass." WICKERSHAM VS. SUL2ER. 75 % Girdwood. — ^No registration boolv. Oaths of judges signed, but not sworn to. Oranite. — No registration booli. No jurat to oaths of judges. Koyimifi. — No election hekl. as no one to vote. Granby. — Judges of election sworn in by one of the judges, who was not sworn himself. Hope. — Three judges of election took oath, but were not sNNorn. Iliammi. — Oaths of judges sworn to by one of the judges, who was not sworn himself. Jumbo. — O. K. Katalla. — Election register " Kayak." Notice reads " Katalla." No registra- tion book. Kenai. — No registration book. Oaths of judges sworn to by one judge, who was not sworn himself. Kennecott. — No registration book. Sinik. — Oaths of judges sworn to by notary public, but no seal of notary shown. Kodiak. — No registration book. Landlock. — Oaths of judges sworn to by one of judges, who was not himself Sworn. No registration book. La Tottc/ie.— No registration book. Two judges sign certificate of returns. M a,t anil ska. —Oixths of judges sworn to by one of judges, Avho was not sworn himself. No registration book. McCarthy. — No registration book. McDovgaU. — No registration book. Oaths of judges sworn to by one of judges, who was not himself sworn. Moose Creek. — No registration book. Oaths of judges sworn to by one of judges, who was not himself sworn. Naknek. — No official ballots. Used regular Democratic ballots. Certificate showing why these ballots wei-e used, account not having received official bal- lots. No notice of election. Kogginng. — Memorandum from commissioner at this place says there was a notice posted at Kogginng notifying voters to vote at Naknek. , NinUehic. — No registration book. Nizina.- — Three judges taken oath, sworn in by one of the judges who was not sworn himself. Nushagak.— Oaths of judges sworn to by one judge who was not sworn him- self. No registration book. Ballots are regular -Democratic ticl^et. No certifi- cate to show why official ballots were not used. Ouzinkie. — Oaths of judges sworn to by one of judges who was not sworn himself. No registration book. Roosevelt. — No registration book. Oaths of judges sworn to by one of judges who was not sworn himself. Seldovia. — No registration book. Oaths of judges sworn to by one of judges who was not sworn himself. /S'e?(;ar(Z.— Certificate of election register not signed by judges. Sourdough.— Oaths of judges not sw(n-n to. No registration book. Strelna. — No registration book. Oaths of judges signed but not sworn to. Stmme.— No registration book. Oaths of judges sworn to by one of judges who was not sworn himself. Susitua. — No registration book. Talkeetna. — No registration book. Teikel. — No registration book. One judge swore in the other two judges. Vvga.—O. K. Yaldez. — No registration book. WilJow Creek.— No registration book. Oaths of judges sworn to by one of judges who was not sworn himself. Wassila. — No registration book. SECOND DIVISION. Telegram from the clerk of the court saying that oaths of judges were returned to him from all the precincts in the second division. ^lutf. — No registration book. No oaths of judges. Candle. — No registration book. No oaths of judges. Council. — No registration book. No oaths of judges. Cape Nome. — No registration book Chmik. — No registration book. N( No oaths of judges. No oaths of judges. 76 WIOKEESHAM VS. SULZER. Deering. — No registration book. No tally sheet. " Republican ballots." Kobnk. — No registration book. No oaths of judges. Koyuk. — No registration book. No oaths of .iudges. Nome No. 1. — No registration book. No oaths of judges. Nome No. 2. — No registration book. No oaths of judges. Nome No. 3. — No registration book. No oaths of judges. Port Clarence. — No registration^book. No oaths of judges. Pilgrim River (Iron Creek). — No registration book. No oaths of judges. Taylor Creek. — No registration book. No oaths of judges. Sheltou. — No registration book. No oaths of judges. Solomon. — No registration book. No certificate of register. No oaths of judges. St. Michael No. J. — No registration book. No oaths of judges. St. Michael No. 2 (Unakleet) . — No registration book. No oaths of judges. Wadehampton No. 1. — No registration book. No oaths of judges. Wadehampton No. 2.— No registration book. No oaths of judges. FOURTH DIVISION. Aniak. — No registration book. (Two marred ballots for Sulzer. ) Broofcs.— No registration book. Two judges sworn ; one judge not sworn. Bomiiflelcl. — No registration book. Sample ballots iised. Letter from clerk of court explaining. Settles. — No notice and order of election. No registration book. Chena. — No registration book. Cripple. — No i-egistration book. No certificate or copy of election register. Two oaths of judges sworn to, dated October 16, 1916 ; one oath sworn to. dated November 6. 1912. Chicken Creek. — No registration book. Two judges sworn ; one judge not sworn. Circle. — No registration book. Coldfoot. — No registration book. Two judges sworn ; one not sworn. No notice and order of election. Deadwood. — No registration book. Two judges sworn ; one not sworn. Eureka. — No registration book. Eagle. — O. K. Ester. — Two judges sworn ; one judge not sworn. Fairbanks.- — No registration book. Fairbanks Creek.— 'No registration book. Two judges sworn ; one not sworn. Fort Yvkon. — No registration book. Franklin. — No registration book. Fish Creek. — No registration book. Two judges sworn ; one not sworn. Fort Gibbon. — No notice and order of election. Telegram from commissioner says was issued August 28, forwarded by mail January 25. No registration book. Greenstone. — No registration book. No certificate of registration. Two judges sworn ; one not sworn. Graehl. — No registration book. Gilmore. — No registration book. Two judges sworn ; one not sworn, Georgetoiim. — No registration book. Three judges sign oath, but none are sworn. Hot Springs. — No registration book. Certificate of registration not filled out or signed by the judges. Two judges sworn ; one not sworn. Iditarod. — No registration book. Jack Wade. — No registration book. Louden. — No registration book. Two judges sworn ; one not sworn. Lotver Cleary. — O. K. Little Eldorado. — Two judges sworn ; one not sworn. Lower Dome. — Two judges sworn ; one not sworn. One marred ballot. Lower Goldstream. — Two judges sworn. No registration book. Long. — No registration book. No copy of clerk's returns. Mouth of Crooked. — ^No registration book. No clerk's copy. Two judges sworn ; one not sworn. Moose Creek. — No registration book. Miller House. — No registration book. McGrath. — No registration book. Election register made up on plain ,paper not signed by judges, but no affidavit. Supplies did not arrive in time. No oaths of judges. WICKEKSHAM VS. SULZEE. * 77 l^enan. — No registration book. Two judges sworu; one not sworn. Nulato. — 'No registration book. Ophir. — No registration book. Poor man. — No registration boolv. Pedro. — No registration book. Railroad. — No registration book. Two judges sworn ; one not sworn. Rampant.— No registration book. Richardson. — Clerk of court wired that notice was on tlie way. Rtiby. — No registration book. Salchaket. — No registration book. Two judges sworn ; one not sworn. Steel Creek. — No registration book. Salchaket. — No registration book. Two judges sworn ; one not sworu. Tan ana. — No registration book. Tolstoi. — No registration book. Certificate of election register not filled out or signed. Tokotna. — No registration book. Certificate of registration not signed by judges. Nineteen official ballots. Twenty-three unofficial written on type- writer. Affidavit as to why unofficial ballots were used. No oaths of judges. Upper Cleary. — Two judges sworn ; one not sworn. Upper Dome. — No registration book. Two judges sworn ; one not sworn. Upper Goldstream. — No registration book. Vault.- — Judges do not sign election returns. No registration book. Clerk's duplicate shows that the returns were signed by the judges on the copy sent him. Woodcliopper. — No registration book. Two judges sworn; one not sworn. West Fork. — Certificate of registration not filled out or signed. No registra- tion b'ook. Two judges sworn ; one not sworn. Woodshopper (Tofty) [Hot Springs district). — No registration book. Two judges sworn ; one not sworn. Wiseman. — -No registration book. FIRST DIVISIOIK. There will be no duplicate returns from the clerks of the court, as the clerk in the first division did not provide for these returns. Beaver Falls. — Certificate of registration not filled out. Charcoal Point. — Three judges signed the oath, but were not sworn. No election register returned. One vote for Wickersham. Voter signed his name on ballot (Fred Smith). Counted in the returns. Craig. — No election register. Two judges sworn ; one not sworn. Chichagoff. — No election register. Chilkat. — Five ballots rejected by election board, one for the reason that voter wrote his name opposite the man he voted for. Not recorded in election returns on account of ballots being marked on the right side ; one on account of voter voting for six representatives instead of four. No election register. Douglas. — No election register. Certificate of register not filled out. Dolomi.- — No election register. Two judges sworn, one not sworn. Douglas No. 2. — Three spoiled ballots. Not cast nor counted. Eagle. — No election register. Three judges sign but not sworn. Tenakec. — No election register. Gold Creek. — No election register. Three ballots thrown out, account voted 'or more than called for. * Haines. — No election register. Two judges sworn, two clerks sworn. Hoonah. — No election register. Two judges sworn, one not sworn. Hadley. — No election register. One judge only signs the registration book. Juneau No. 2. — Election returns are not signed by the judges. No election register. Total votes not carried forward nor signed by judges. Juneau No. 3. — Registration book not certified to. No election register. Two judges sworn, one not sworn. Jualin. — No election register. Jaulapa. — Two judges sworn, one not sworn. Ketchikan. — Certificate of registration not filled out. Kassan.- — Certificate of registration not signed by judges. Three judges signed, but not sworn to. Kake. — No election register. Loring. — Two judges sworn, one not sworn. Election returns not sworn to. One sample ballot voted ; note on ballot to the effect that judges marked the ballot. TS WICKERSHAM VS. SULZER. Mendenliall. — Certificate of register not filled out. Two judges sworn, one not. Petersburg. — No election register. Perseverance. — Certificate of registration not filled out or signed. Skagivay. — O. K. Shakan. — Certificate of registration booli: not filled out. Two judges sworn, one not sworn. No election register. Sheep Creek. — No election register. Two marred ballots. Two judges sworn, one not sworn. Salmon Creek. — No election register. Two judges sworn, one not sworn. ScoiD Bay. — Certificate of registration is not filled out. Two judges sworn, one not. Siifca.— No election register or clerk's duplicate. Sulzer. — Two judges sworn, one not sworn. Tread'well.- — No election register. Wrangell.—No election register. Windham. — Registration book shows 27 ; only 11 voted. Two judges sworn, one not sworn. No election held at Chatham. Dundas, Gypsum, Warm Springs, Yakitat. Juneau, Axaska, February 19, 1911. Hon. J. F. A. Strong, Governor and Chairman of Canvassing Board, Juneau, Alaska. Sib: I have your communication of February 16, 1917, submitting to me for my opinion certain questions arising out of irregularities in the returns of the general election held in the Territory of Alaska on November 7, 1916. Three of the questions propounded by you I consider of sufficient importance to malve the subject of a separate opinion. I he^e^^■ith submit uiy conclusions with respect to the other questions submitted by your board. 1. Where judges of election failed to execute oath. 2. Where one judge swore the other two, but was not himself sworn. 3. Where all three judges signed oath form, and one signed the jurat. 4. Where all three judges signed oath form, but no one signed the jurat. 5. Where all three judges signed oath form, and two of them signed the jurat. The failure of election judges to execute oath is an immaterial irregularity in the conduct of the election which does not affect the result, the courts unani- mously holding that notwithstanding the failure of these officials to take oath and otherwise qualify, nevertheless if they perform functions of judges, their acts are legal as the acts of de facto officers. (Whipley v. McKune, 12, Cal., 362 ; Sprague v. Norway, 31 Cal., 173 ; Saunders v. Lacks, 142 Mo., 2.35 ; Heyfron V. Mahoney, 9 Mont., 497 ; Stimson v. Sweeney, 17 Nev., 309 ; People v. Cook, 59 Am. Dec, 451. ) 6. Where no registration book was used. 7. Where registration book was used, but names of voters were written therein by member of election board instead of by the voters themselves. 8. Where registration book was not certified by election board. 9. Where but one judge signed certificate to registration book. I assume that this refers to the registration book prescribed by chapter 25 of the Session Laws of Alaska, 1915. If so, my opinion is that the failure to use the registration book was not an irregularity vital to the legality of the election. The registration provided for by the act of the legislature, chapter 25, Session Laws \)t Alaska, 1915, is not a registration prior to the election and not one that affects the qualifications of voters, but simply a method provided for the conduct of the election and to prevent illegal voting by making any false statements of the person offering to vote with regard to his qualifications punishable by fine or imprisonment. That part of the statute referring to registration is not mandatory in form, and as it does not relate to matters that are essential elements or affects the merits of the election, it is probably to be considered directory only. (Bowers v. Smith. 17 S. W., 762.) Furthermore, the provisions of chapter 25, relating to registration, are not strictly within the scope of the act as expressed in its title. This, however, is the snbject of another question. 10. Where no register of voters was used in addition to the registration book. By section 397 of the Compiled Laws of Alaska the two judges of election who act as clerks shall each keep a correct duplicate register and enter therein the names of the voters and the fact that they have voted, etc. WICKERSHAM VS. SULZER. * 79 Section 22 of chapter 25 of the Session LaAvs of Alaslva. 1915, provides that the clerk of the conrt shall furnish each polling- place with a book known as the registration book, in Avhich each voter shall sign his name before voting. The provisions of section 22 of chapter 25 do not do away with the necessify for the register of voters required by the provisions of section 397 of the Com- piled Laws of Alaska ; but in case of a failure of the election clerks to keep such register, the registration book required by the legislative act, if containing the names of the voters, would be held as sufficient compliance with section 397 and probably be held equivalent to said register required by that act. The fact that the same is not in duplicate is an immaterial irregularity and would not affect the result of the election. I therefore advise you that in cases where the only register of voters is in the registration book provided for by the legislative act, the returns, if regular in other respects, should be canvassed and the votes counted. 11. Where election board did not make a duplicate return or certificate of the election and forward same to the clerk of the district court. You are advised that this omission is immaterial except in case of loss of the returns mailed direct to the governor, the evident purpose of this provision being to prevent the disfranchising of voters on account of loss of the return. 12. Where (as in the second division) no oaths of election officers were with the returns sent to the governor's office, but clerk of court claims to have fur- nished oath forms to all boards, and that their oaths are on file in his office. This is an immaterial irregularity, as explained with reference to the first five questions. 13. Where election board did not fill in the certificate of result nor sign same. Section 402, Compiled Laws of Alaska, provides that the election board at each polling place shall, after canvassing the votes, make out in duplicate a certificate of the result of said election, specifying the number of votes in words and figures cast for each candidate, etc. This section does not provide that this certificate of the result must be in the back of the register or registration book, or be in any book. There must, how- ever, be some certificate substantially conforming to section 402, or there would be no authentication of the returns or declaration of the result of the election. If such certificate does not accompany the returns, they can not be counted unless a substitute has been received from the clerk of the court, or unless such defect is cured by the certificate being received before the canvassing board ad.iourn it may be accepted and the returns canvassed, or if received with the returns but not signed, and the judges appear and offer to sign the same, they should be permitted to do so, this being simply a matter of the authenticity of the returns and a statement of the result. There is no distinction between questions 13 and 14, as iu both cases there was a failure of the board to sign the certificate, consequently there was no certificate. The authorities generally hold that this certificate is indispensable. (People r. Nordheim. 99 111.. 553; Perry v. Whittaker, 71 N. C, 475; Simon r. Durham, 10 Oreg., 52 ; Opinions of Justices, 68 Maine, 582 ; Lawrence County v. Schmaulhausen, 123 111., 321. ) 15. Where only record of result is the tally sheets sent in by the board, only one of Avhich is certified. If properly certified, so as to substantially comply with the requirements of section 402, Compiled Laws of Alaska, and clearly constituting a declaration of the result and authentication of the returns, I have no doubt it would be sufficient, even though not iu duplicate. The test is whether the returns are sufficiently authenticated so that the canvassing board can determine that they are genuine returns. If the return lacks these requisites, it should either be corrected if an opportunity is offered, or if not corrected should be rejected. 16, 17, and 18. These questions are made the subject of another opinion. 19. Where " workers' ballots " were used instead of official ballots (the ballots used bearing the name of a political party) and explanation made by election board as to their use. Where the explanation made by the election board is iu compliance with sec- tion 21 of chapter 25, Session Laws of Alaska, 1915, the ballots should be counted. The fact that the ballots bore the name of a political party is no reason for rejecting them. Where the law permits' the voter to use other than official ballots, they do not have to be in the form prescribed by the legislative act, but are sufficient if they substantially comply with the congressional act, and under the congressional act distinguishing marks or party designation would not be a material irregularity. There is no reason whatever for rejecting the 80 WICKEESHAM VS. SULZEE. ballots on account of the party designation, and no authority can be cited in support of their rejection. 20. Where election returns are in but canvassing board has not received cer- tified copy of commissioner's order and notice of election. The certified copy of commissioner's order and notice of election is not a. part of the retui'n, and the failure of the commissioner to forward the same ta the governor of Alaska, as required by section 396 of the Compiled Laws of Alaska, does not prevent the canvassing of the returns if the canvassing board is satisfied from other information that the returns ai'e from regularly estab- lished precincts. 21. Is chapter 25, Session Laws of 1915, valid? Chapter 25, 1915 Session Laws, is valid in so far as it provides for a form of official ballot and matters germane to such subject. In other respects it is of at least doubtful validity for the reason that the organic act provides that no law shall embrace more than one subject, which shall be expressed in its title. The title to chapter 25 is "An act to provide official ballots for elections in the Territory of Alaska." 22. In what respects does chapter 25, Session Laws of 1915, change the pro- cedure of elections in the matter of a duplicate register of voters, duplicate re- turn by election boards, certification of returns, etc., as that procedure was outlined in the act providing for the election of a Delegate to Congress? Chapter 25, Session Laws of 1915, does not change the procedure of elections, in the matter of a duplicate register of voters, duplicate returns by election boards, certification of return, as that procedure was outlined in the act pro- viding for the election of a Delegate to Congress, except that by section 21 of chapter 25 a certain additional certificate is under certain- circumstances made an essential part of the returns. This is the certificate required where official ballots are not received in the precinct. Chapter 25 is valid as to all provisions prescribing a form of official ballot and is valid as to the provisions of section 21 thereof. Respectfully, Geokge B. Geigsby, Territorial Counsel. Juneau, Alaska, February, 19, 1917. Hon. J. F. A. Strong, Governor, and Cliainnan of Canvassing Board, Juneau, Alaska. Sir : I have your communication of February 16, 1917, submitting to me certain questions upon which an opinion is desired by the convassing board now engaged in canvassing the returns of the general election held in the Territory of Alaska on November 7, 1916. Among the questions submitted are the following, which I deem of sufficient importance to make the subject of a separate opinion. 16. Where unofficial ballots were used and no explanation made by election board as to why they were used. 17. Where sample ballots were used (furnished by the clerk of the omit) instead of the official ballots, and no explanation liiveii. 18. Where " workers' ballots " were used instead of the official ballots, and no explanation made by election board. These questions may be considered together, as there is no difference between the irregularities in each, there being no distinction .between a case where workers' ballots or sample ballots were used and one where any other form of unofficial ballots were used. The case of Boyd v. Mills, 53 Ivans., 594, makes a distinction where sample ballots are used, but in view of the mandatory provisions of the statutes hereinafter discussed I am of the opinion that such distinction does not exist under the laws of Alaska. The returns from the precincts where the above irregularities occur consists of the certificates of the result of the election, the register of voters, and the ballots cast. These returns were properly sealed up and mailed to the gov- ernor of Alaska. It appears, however, on an examination of these returns by the canvassing board, that the ballots \ised were not the official ballots pro- vided for by the act of the Territorial Legislature of April 27, 1915, chapter 25, Laws of Alaska, 1915, but were prepared by the voters or some person for them and failed in practically all essentials to conform to the style of ballot prescribed by the act. In other words, in the precincts in question there was a total disregard of the provisions of the legislative act. The territorial act tibove referred to provides in substance that the clerks of the district court in WICKEBSHAM VS. SULZEB. ^ 81 each judicial division sliall prepare tlie ballots for use in their respective divisions in all elections. Then follow certain directions as to the style of the ballot, the color and dimensions of the paper to be used, the provisions for blank spaces for the insertion of names of candidates not printed upon the ballots, and other provisions common to the Australian ballot law. Section 21 of this territorial act provides as follows : "That in any precinct where the election has been legally called and no official ballots have been received the voters are permitted to write or print their ballots, but the judges of election shall, in this event, certify to the facts which prevented the use of the official ballots, which certificate must accom- pany and be made a part of the election returns." All authorities are agreed that the controlling purpose of the Australian ballot law is to secure a secret ballot, to the end that the voter may fully and freely vote for his choice of candidates uninfluenced by threats or intimidation and that corruption of his vote may be prevented. There is a great confusion of authorities as to whether such laws are to be construed as mandatory in all respects, or merely directory, some courts going to the extreme in holding: the ballot legal, though not in statutory form, being inclined, in the absence of proof of fraud, to subordinate the requirements of the statutes to the ascer- taining of the intention of the voter and the will of the majority. This view of the law is concisely expressed in the case of Horsefall et al. v. School Dis- trict. 143 Mo. App., .545, as follows-: " We think it may now be said to be the established rule in this State, as it is generally in other jurisdictions, that when a statute expressly declares any particular act to be essential to the validity of an election, then the act must be performed in the manner provided, or the election will be void. Also, if the statute provides specifically that a ballot not in a prescribed form shall not be counted, then the provision is mandatory, and the courts will enforce it; but if the statute merely provides that certain things shall be done, and doe.s not prescribe what results shall follow if those things are not done, then the provision is directly merely, and the final test as to the legality of either the election or the ballot is whether or not the voters have been given an oppor- tunity to express, and have fairly expressed, their will." The foregoing rule has been applied in many casses where the ballots pro- vided by those whose duty it was to prepare them, did not strictly conform to the statutory provisions. In some of the cases the ballots Avere only slightly irregular, and there is a hopeless confusion of authorities as to what depart- ures from the statutory requirements are and what are not fatal to the validitv of the ballots. I have been unable to find any case, however, holding the votes legal where the use of official ballots was entirely dispensed with. The effect of applying the rule announced in Horsefall v. School District to the case before this board, where no official ballots were used at all, would be to establish a precedent encouraging an absolute disregard by both voters and officials of the provisions of the law as to the form of the ballot. The territorial act. as before stated, directs that the clerk of the district court shall prepare the ballots for use in all elections, and it prescribes the form of ballot. It does not in express terms provide that none but the official ballots shall be counted. It does, however, so provide bv implification for section 21 of the act quoted above declares when and under what circumstances other than the official ballots may be used. By the common rule of construc- tion, the well-worn maxim, " Expressio unius est exclusio alterius," applies here, and the fact that the legislature has expressly declared that under cer- tain circumstances other than official ballots may be used clearlv shows an intention that they shall not be used except under the circumstances detailed Even conceding the Horsefall case to express the true rule, our statute would nevertheless be construed as mandatory. _ The Horsefall case, however, is not supported by the best authoritv. Con- Bidering the purpose of the Australian ballot law, it is plain that its obiect would be defeated in the directions as to the preparation and form of the ballot were not regarded as mandatory. The employment of express words IS not always necessary to give a law a mandatorv character The following from the case of Board v. Dill, 110 Pacific.' 1107 a case in- vovmg-^ questions similar to those here discussed, clearlv expressed the true rule. After reciting the facts, the court states: expiessea tne tiue 13289—17 6 82 WICKERSHAM VS. SULZER. " By this it will be seen that we are again confronted with the eternal moot of whether an election statute is mandatory or directory. The perpetuity and virtue of popular government can only be secured and maintained by pro- viding for the independence of the electors upon whose consent and will it exists. Widespread charges of improper influences, bribery, and corruption committed on the occasion of elections in many of the States of the Union, bringing in their wake defeat of the popular will and success to the corrupt schemes of designing men, brought about the election reform known as the Australian ballot system. Elections prior to it were held by an open ticket system, under which secrecy was almost if not quite impossible, and dependent or corrupt voters were equally at the mercy and under the control of those who would use them for corrupt ends. The court of appeals of New York, iu the case of People r. Board of County Canvassers, 129 N. Y. 395, 29 N. E. 327, 14 L. R. A. 624, says : " We know that the principal mischief which the statute was intended to suppress was the bribery of voters at elections, which had become an intolerable evil, and this was to be accomplished by so framing the law as to enable if not compel the voter to exercise his privilege in absolute secrecy. The Supreme Court of Michigan in the case of Detroit v. Rush (82 Mich., 532 ; 46 N. W., 951 ; 10 L. R. A., 171) says : "The secrecy of the ballot is the- great safeguard to the purity of elections. The vote by ballot implies secrecy. This secrecy should not be confined to the time of depositing the ballot. It should accompany the voter through all the steps provided for the preparation of his ballot. Only in this way can he be freed from all intimidation, improper influences, reproach, and animadversion. When all knowledge of how he voted is the voter's own secret, iinless he chooses to divulge it, he is fully protected, and a free and honest vote will very uniformly be the result." The Supreme Court of Appeals of Virginia in the case of Pearson v. Bruns- wick County (91 Va., 322; 21 S. E.. 483) says: " The object is to relieve the voter from every influence inimical to a free and deliberate exercise of the right of suffrage, to free him from all solicitation and annoyance, and to leave him perfectly free agent to vote as to him seems best. These provisions seem to be not only reasonable, but well adapted to secure the end in view, so far as the voter is concerned who is able to prepare his own ballot. He goes to the judges, he receives an ofHcial biillot printed by authority of the State, upon which is found every office to be filled and every candidate for that office, whose name has been filed in accordance with the requirement of the law, and he retires to a booth where he is curtained off and secluded from all the "»rld. No eye can see him and no ear can hear him ; no evil agency can approach him ; and, with these environments, he prepares his ballot, folds and delivers it to the judge who, in his presence, places it in the ballot box. The general scheme of the law is to secure the independence of the voter by secluding him within an isolated booth, surrounded by a neutral zone, within which none may enter save those charged with conducting the election." Thus it is seen that the general scheme of the system is to secure the inde- pendence of the voter by requiring him to cast his vote in secret. " Secrecy is the fundamentrd underlying iirim.-ny essentijil of the system, and is the one element and condition which, paramount to all others, can not be de- stroyed Avithout destroying the reform intended and reestablishing the evils it was designed to correct. Statutes which make, even incidentally, for its preser- vation and inviolability are seldom directory, and without exception, where the language will admit of it, are held to be mandatory." In Tuntland v. Noble (138 N. W., 292) the court disapproves of the opinion of the Horsefall case, and condenses what seems to be the weight of authority, as follows : " What seems to xis to be the true rule is laid down in the following from the opinion of the court in the CMse of Perty r. Hackney (90 N. W., 485) : " ' The statute under consideration is, then, not in terms mandatory, but it is well settled that the employment of express words is not always necessary to give it that character. Where the aim and purpose of the lawmaking power would be plainly defeated if the command to do the thing in a particular manner did not imply an inhibition to do it in any other, no doubt can be maintained as to the mandatory charMCter of the statute.' " (23 Am. and Eng. End. of Law, pp. 453, 454, and cases cited.) The proper test for distinguishing mandatory from directory provisions of the elections laws is well stated by the Supreme Court of Indiana in Parvin v. Weinberg (80 N. E., 790), as follows: WICKERSHAM VS. SULZER. ^ 83 " If a statute expressly declares any particular act to be essential to the Talidity of an election or that its omission shall render the election void, the courts whose duty it is to enforce the law as they find it must so hold, whether the particular act in question goes to the merits or affects the result of the election or not, for such a statute is mandatory and the court can not enter into the question of its policy ; on the other hand, if a statute simply provides that certain things shall be done within a particular time or in a particular manner and does not declare that their performance shall be essential to the validity of an election, they will be regarded as mandatory if they affect the merits of the election and as directory only if they do not affect its merits." We also approve the following from the case of Jones v. State es rel. Wilson (55 N. E., 229) : "All iirovisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose, but after election all should be held directory only, in support of the results unless of a character to affect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the par- ticular act is essential to the validity of an election." Applying the law as enunciated in the opinion quoted, many irregularities in an election proceeding, including deviations from the form of official ballots, may be disregarded as not affecting the merits of an election and not affecting an essential element of the election, being matters of form rather than of sub- stance. The courts go a great way to sustain the Validity of elections, the conduct of which is in many respects far from incompliance with the regulations imposed by statute. But when we consider the object of the Australian ballot law it is at once apparent that a total disregard of its provisions would entirely defeat the pur- pose of the lawmakers. Slight departures from those directions prescribed probably would not be vital, but to entirely dispense with them would certainly " both affect the merits and affect an essential element of the election " ; that is, the element of secrecy, which is the primary object sought to be attained by the law. " This being true, a court will not investigate to ascertain whether or not the disregarding of this essential element," going as it does to " the merits of the election," did in fact in a given case affect the apparent result of the elec- tion." (Tuntland v. Noble, 138 N. W., 292.) In other words, it is enough that its necessary tendency would be to aft'ect the merits of the election. The following also expressed the general rule : " The statutes usually prescribe the size and form of the ballots* and the kind of paper on which they are to be printed, and prohibit any marks, figures, or devices upon which one can be distinguished from another. These statutes, being designed to preserve the secrecy of the ballot and to prevent fraud, in- timidation, and bribery, will generally be considered mandatory ; and this will be so in all cases where the statutes provide that a ballot varying from the requirements of the law shall not be countd. But if this provision is lacking, while it is the duty of the election officers to refuse to receive the ballots if the deviations from the law are manifest, if they have been received they should not be rejected if the variations are but trifling. It is necessarily impossible to lay down any general rule by which to determine what is a material varia- tion from the required form, within the meaning of said statutes, and each cnse must be determined from its own facts and circumstances." (Am. & Eng. Enc, 2d ed., vol. 10, p. 726.) This board is not confronted with a case where there is a slight deviation from the regulations prescribed by law, but where there is a total disregard thereof. My conclusion therefore is that the Alaska territorial act is mandatoi-y in so far as it relates to the manner of preparation and form of the ballot. It follows, therefore, that ballots cast not prepared by the proper oflScials and substantially conforming to the statute are illegal. In the precincts in question there was a total failure to comply with the provisions of the statute, and the ballots cast in these precincts therefore are invalid and can not be counted unless some other provision of the statute authorize their being accepted as valid. It therefore remains to consider the application of section 21 of the territoi'ial act, to the question submitted. Again, quoting section 21 : " That in any precinct where the election has been legally called and no official ballots have been received, the voters are not permitted to write or print 84 WICKERSHAM VS. SULZER. their ballots, but the judges of election shall, in this event, certify to the fact which prevented the use of the official ballots, which certificate must accompany and be made a part of the election returns." The ballots included with the returns from the precincts in question are not and do not purport to be the official ballots, but were prepared by tlie voters themselves or by some person tor th.em. This by section 21 is allowed to be done " where no official ballots have been received." Section 21 is a proviso creating an exception from the operation of the statute. Such provisos must be strictly construed. This is the general rule. (36 Cyc, 1162, and cases cited.) Construing the election act as mandatt)ry, the law of Alaska, which is to be applied to the case under consideration, is in effect as follo^^'s : " None but official ballots shall be voted except in precincts where no official ballots have been received." Section 21 further provides that in the event no oflicial ballots have been received the judges of election shall certify to the facts wliich prevent the use of the official ballots, which certificate must accompany and be made a part of the election returns. The purpose of the latter provision is apparent. With- out the certificate of the judges the canvassing board would have no means of ascertaining the reason the official ballots were not used. It has been suggested that the very fact that no official ballots whatever were used in the precincts in question would give rise to the presumption that none were received. There Is no such legal presumption. Very possibly this might have been the case ; pos- sibly it might not have been. To assume the existence of such a presumption would entirely nullify the act and dispense with the necessity of using official ballots at all. The truth is, there is no presumption of fact one way or the other. The nonofficial ballot is prima facie illegal, and not not be counted, except under certain circumstances, to A^'it, where no official ballots have been received. On the face of the returns from the precincts in question the ballots cast are all illegal, because not official ballots. The canvassing board has been furnished A^ath no evidence at all of the ex- istence of any legal reason why official balk)ts were not used. The law provides but one method of furnishing evidence of such reason, and that is by the cer- tificate of tlie judges which " must accompany and be made a part of the returns." This board has no such certificate before it, nor any other evidence of the reason for the use of nonofficial ballots. The word " must " is ordinarily to be construed as imperative and mandatory, and always to be so construed unless the intention of the legislature is apparently to the contrary. (36 Cyc, 1160.) No reason can be conceived for construing it otherwise in the above statute. The word " must " used in the statute necessarily implies certain consequences if the statute is not complied with. The implication in this case is that unless a certain certificate accompanies and is made a part of the returns, where non- official ballots are used, they must be rejected. Whether or not the facts were that no official ballots were received in the precincts involved is a question which can not be inquired into by this canvassing board, as the law prescribes what shall be evidence of this fact, so far as the canvassing board is concerned, and there being no evidence on the subject before the board the ballots must be considered illegal and the vote rejected. Whether or not the vote might be counted in a contest before the proper tribunal, in case legal evidence was re- ceived of the existence of circumstances which the statute says legalizes the use of nonofficial ballots, is a question with which the canvassing board is not concerned. Undoubtedly if the returns were submitted in their present form they would be rejected by any tribunal having jurisdiction to try a contest. This situation must not be confused with cases where the election judges failed to send all the documents, such as ballots, tally sheets, register of voters, oaths of judges, necessary affidavits, etc., which constitute election returns. Mere omissions of this kind, by the great weight of authority, do not necessarily vitiate the returns. The present situation is different. Here is no failure to send any certain document which is by law a part of the returns. In this case there is no reason to assume the existence of the certificate lacking. There is no reason to assume the existence of the reasons Avhich would make the cer- tificate a necessary part of the returns. Assuming the existence of the reasons and of the certificate, still the statute requiring the latter to accompany the returns would have to be construed as mandatory. But we can assume neither. We have returns Qomplete in all respects showing the vote prima facie illegal and void, on account of the use of the illegal ballots. WICKEBSHAM VS. SULZER. 85 Ex parte Riggs, 29 S. E., 645, is similar to tlie case before tliis board. In the Riggs case the canvassing board rejected certain ballots not conforming to the statute. The court said : " The lawmaking power having declared that voting shall be by ballot, and having prescribed the form of such ballots, and, what is more important, having in unmistakable terms forI)idden a ballot which is not in the prescribed form from being counted, we can not liold that the board of State canvassers com- mitted any error in obeying this express mandate of the body intrusted with the power to make the laws. We have neither the power nor the disposition to inquire into the wisdom of policy of such a law, for ' ita lex scripta est ' is sufficient for us and precludes further inquiry." To be sure in the Riggs case, the South Carolina statute provided expressly that no ballot of any description other than that provided by law should be counted, but we have already reached the conclusion that notwithstanding the absence of this express provision our statute is none the less mandatory, and once conceded to be mandatory it inhibits the use of nonofflcial ballots just as effectively as if it in expi-ess terms stated that thej^ could no be counted. The Riggs case above quoted is therefore exactly in point. Section 403 of the Compiled Laws of Alaska provides as follows : " The governor, surveyor general, and the collector of customs for Alaska shall constitute a canvassing board for the Territory of Alaska to canvass and compile in \^riting the votes specified in the certificates of election returned to the governor from all the several election precincts as aforesaid." The question has been raised as to the duty of the board to consider anything ■else in making their canvass than the election certificates referred to in the iibove section. Section 402, Compiled Laws of Alaska, provides what shall constitute the election returns. The ballots are not, as in many States, separately sealed up, but are inclosed in the same envelope with the accompanying documents. All these documents taken together constitute the election returns. The board meets for the purpose of canvassing and compiling the vote specified in the certificates. To "canvass" has been defined by Webster to hean "to examine thoroughly, to search or scrutinize." The Standard Dictionary defines the word " to examine searchingly, go over in detail, scrutinize, sift — as to canvass the vote in an election ; an official scrutiny, as a canvass of votes at an election." "A canvass of an election includes not only the counting of the votes by the inspectors, but the record of the count by the poll clerks upon the tally sheet, so that the tally sheet is a substantial part of a canvass." (In re Stewart, 48 N. Y. Supp., 957.) "A canvass is but a count of the ballots, a convenient and expeditious method •of determining the choice of the people as disclosed by the ballots. As between the ballots themselves and a canvass of the ballots, the ballots are controlling." (Hudson V. Solomon, 19 Kans., 177.) " Canvass as applying to an election would seem to impose an obligation beyond that of merely counting the ballots and comparing the statements of the man- ■agers. Canvassing implies searching, scrutiny, investigation, examination." (State V. Nerland, 7 S. C, 246.) Canvass as applied to electron returns does not necessarily mean to count the ballots. To canvass the returns and to canvass the vote, are frequently used synonymously. (People r. Rown of Snusalito, 39 Pac, 937.) It may be conceded that the almost universal rule is that a canvassing board •can not go behind the returns to look for illegalities or fraud, in the conduct of the election, nor should it consider trifling defects in the returns, or slight omissions of the returning officers. The duties of canvassing boards are purely ministerial ; they are to consider only what appears on the face of the returns. Even in case of doubt as to the legality or illegality of certain ballots, they are not to go behind the certificate of the judges of election. But when the returns show on their face that all of the votes in a given precinct are beyond question illegal, the ballots having been prepared with total disregard of the provisions of the election law, they are bound to reject them where the certificate is lacking which would legalize such ballots. Section 402 of the Compiles Laws, designating what shall constitute returns, must be con- strued together with section 21, chapter 25, of the Session Laws of Alaska, 1915, which latter section amends section 402 to the extent of making the certificate referred to therein an essential i)art of the returns. Ex parte Riggs, 29 S. E., 645, cited above, is authority for the canvassing board to reject returns where the ballots are illegal. It was also held in Missis- 86 WICKEESHAM VS. SULZER. sippi that where the ballots which were required to accompany the returns showed upon their face that they were illegal, the canvassers might reject them in the count. (Oglesby v. Sigman. 58 Miss., 502.) This case seems to be exactly in point, as under the laws of Alaska the bal- lots must accompany the returns and are not separately sealed. In this case, the returns from the precincts where the irregularities are such as described in questions 16. 17. and IS. show prima facia an absolute total dis- regard of the territorial act in the use of the illegal ballots not explained by any evidence of any kind, and you are advised that they must be rejected. The burden should be upon him who relies upon such votes to furnish the evidence establishing their validity before the proper tribunal. In the mean time it is the duty of the canvassing board to give effect to the will of the ma- jority who have complied with the law by delivery of certificate of election to the candidates receiving a majority of legal votes. Respectfully, George B. Grigsby, Territorial Counsel. United States of America, District of Alaska, Division No. /, .s-s.' I. the undersigned, clerk of the district court for the District of Alaska, Division No. 1, do hereby certify that the hereto attached is a full, true, and correct copy of the original alternative writ of mandamus in 1593-A entitled The Territory of Alaska, on the relation of Charles A. Sulzer and Charles A. Sulzer, relator and i)laintiff, c. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants, of record in my office. In testimony whereof I have subscribed my name and affixed the seal of the said court at Juneau, Alaska, this 2d day of March. 1917. [SEAL.] J. W. Bell, Clerk. ALTERNATIVE WRIT OE MANDAMLTS. In the District Court of the Territory of Alaska Division No. 1. The Territory of Alaska, on the relation of Charles A. Sulzer, and Charles A-. Sulzer, relator and plaintiff, v. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles F. Davidson, and John F. Pugh, de- fendants. To the Canvassing Board of the Territory of Alaska, constituted for the purpose of canvassing the vote case at the election held on November 7, 1916, and to J. F. A. Strong, Charles E. Davidson, and John F. Pugh, the persons consti- tuting said board, Greeting: I, Robert W. Jennings, judge of the above-entitled court, in the name of the United States of America, do hereby command you, and each of you, that in canvassing the vote cast for Delegate to Congress for the Territory of Alaska, at the election held on November 7, 1916, you reject and do not count the returns and the votes received and transmitted to you from the following pre- cincts, to wit : Votes. Choggiung: For James Wickersham 25 For Charles A. Sulzer — .. 3 Deering: For James Wickersham 10 For Charles A. Sulzer ^ ^ Nizina r For James Wickersham '^ For Charles A. Sulzer 2 Nushagak: For James Wickersham 10 For Charles A. Sulzer S Utica : For James Wickei'sham 13 For Charles A. Sulzer ^ Bonnifield: For James Wickersham 3 For Charles A. Sulzer 1 Vault : For James Wickersham 8 For Charles A. Sulzer 2 and that you issue a certificate of election of Charles A. Sulzer. the relator herein, certifying that he has been duly elected as a Delegate to Congress for tlie Territorv of Aliaska, at the election held on November 7. 1916, and that you, and each of vou, return this writ with your certificate and the certificates WICKERSHAM VS. SULZER. % 87 of each of you annexed, of having done as you are herein commanded, or the cause of your omission thereof, on the 3d day of March, 1917, at the hour of 2 p. m. of said day, at the courthouse in the city of Juneau, Alaska, and at the court room thereof, and you are hereby restrained from counting tlie votes or receiving the returns from any one or more of the precincts above named under the further order of this court. Done in open court this 2d day of Marcli, 1917. (Signed) Robert W. Jennings, Judge. PETITION. In the District Court for the Territory of Alaska, division No. 1. The Terri- tory of Alaska, on the relation of Charles A. Sulzer and Charles A. Sulzer, relator and plaintiff, v. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, de- fendants. To the Honorable Robert W. Jennings, .judge. The relator and petitioner herein petitions this honorable court for a writ of mandamus and a temporary rule, as hereinafter more specifically set forth, and in that behalf respectfully alleges and avers : I- That the relator and plaintiff was a candidate for the office of Delegate to Congress at the election held in the Territory of Alaska, on the 7th day of November, 1916, and as such candidate was voted for by the people of Ala.ska at said election, he having been regularly nominated and placed upon the official ballot pursuant to the provision of law entitling him to become a can- didate, and entitling him to a place upon the official ballot. II. That at said election, one James Wickersham was also a candidate for the said office of Delegate to Congress, and one Lena Morrow Lewis was also a candidate for the office of Delegate to Congress. There were no other candi- dates. III. That the above-uamed J. F. A. Strong is the governor of the Territory of Alaska, duly appointed and acting as such; that the above-named Charles A. Davidson is the duly appointed and acting surveyor general of the Territory of Alaska, and the above-named John F. Pugh is the duly appointed and acting collector of customs for the Territory of Alaska. IV. That the above named comprise the canvassing board empowered and di- rected by law to canvass the votes cast by the voters of the Territory of Alaska at the election held on the 7th of November, 1916. for the office of Delegate to Congi'ess and other officers. V. That said board named as the respondent herein is. now in session and has been in session for some time past, engaged upon its duties of canvassing the returns of the various precincts within the Territory of Alaska. VI. That from the aforesaid returns from said election it appears that of the total votes cast in said Territory for the office of Delegate to Congress this relator and plaintiff received 6,438 votes, the said James Wickersham received 6.414 votes, and the said Lena Morrow Lewis received 1,346 votes. VII. That thereupon it became the duty of the said canvassing board to issue a certificate of election, in accordance with said vote and returns, to this relator 88 WICKEESHAM VS. SULZEK. and plaintiff, Charles A. Sulzer, he being the person having received the highest number of votes, as shown by said return. VIII. That the said canvassing board has refused and is still refusing to issue said certificate of election to this relator and plaintiff, but. on the contrary, has threatened and announced their intention to disregard the legal election re- turns above referred to. in determining to whom said certificate shall issue and threaten and intend to count and canvass together with the returns aforesaid certain false, spurious, and illegal .votes, which returns and votes if counted together with the legal returns of votes will change the result of the said elec- tion as hereinafter set forth. IX. That the false, spurious, and illegal votes and returns threatened to be counted consists of the false, spurious, and illegal votes from the following precincts of the Territory of Alaska, to wit : Choggiung : Votes. For .Tames Wickersham 25 For Charles A. Sulzer . — 3 ♦Peering : • For .Tames Wickersham. 10 T^or Charles A. Sulzer 6 Nizina : For James Wickersham 7 For Charles A. Sulzer 2 Nushagak : For James Wickersham 10 For Charles A. Sulzer 3 Utica : For .Tames Wickersham 13 For Charles A. Sulzer 4 Bonafield : For James Wickersham 3 For Charles A. Sulzer 1 Vault : For James Wickersham. 8 For Charles A. Sulzer 2 X. That in the precincts of Choggiung. Deering, Nizina, Utica, Nushagak, and Bonafield the said vote was and is illegal, false, spurious in this, that the votes cast and threatened to be counted by the said canvassing board Avere not cast in accordance with law in that the voters casting said ballots failed to use the form of official ballot prescribed by the laws of Alaska, and failed to use the official ballots prepared for said election according to the laws of Alaska, but, on the contrary, in casting said votes used a form of ballot .either prepared by the voters themselves or by some person other than the person or persons authorized by law to prepare and provide said ballots. XI. That the laws of Alaska provide as follows: " Tliat in any precinct where the election has been legally called and no er cr se. (Atchison v. Commissioners, 12 Kans., p. 127; New v. Vaegen, 71 N. W., 880.) Anotlier point is that the board, counting the precincts questioned herein, has issued certificates of election for candidates for the House of Representa- tives of Alaska, and that for it to refuse to count said precincts in the matter of the election of a Delegate to Congress would be inconsistent, and that for the court to compel them to do so " would be to invite political confreres to secure certificates issued to some of their numbers to whom the alleged errone- ous returns are favorable and then have the returns eliminated as to those to whom they are found favorable." The answer readily suggests itself, and it is this : The court can not consider what the board has or has not done in the case of other candidates, nor what the " political confreres " or " political op- ponents " of any of the interested parties may or may not have done, or do or do not intend to do ; for such things are not pleaded and are not before the court, nor is it apparent how such things could be material if pleaded. If the board has taken any such action as that, the possibility of which is suggested by Mr. Rustgard, it is likely that the person against whom the action was taken, would, if he had thoughf proper, have come before the court asking the relief which the plaintiff here is asking, or have contested the matter before the House of Representatives of Alaska which convened on March 5. If he has done neither, it but argues that he did not care so to do. But whether he did or did not do either or both of these things the person entitled to the certificate for Delegate should not be pre,1udiced in his application on account of the action or nonaction of others in cases concerning themselves. He stands on his own rights or falls on account of the lack of rights. All that has come before this court is the application of plaintiff, and the sole question is, " Is the plain- tiff entitled to the writ? " Another point made by Mr. Rustgard is that, as the canvassing board would necessarily have to construe statutes, therefore their duty is quasi judicial and involves discretion, and they can not be mandamused in matters of judg- ment ; but as to that point the Supreme Court of the United States very aptly says : " Every statute to some extent requires construction by the public officer whose duties may be defined therein. Such officer must read the law and he must therefore in a certain sense construe it in order to form a judgment from its language what duty he is directed by the statute to perform. But that does 102 WICKERSHAM VS. SULZER. not necessarily and in all cases make the duty of the officer anything other than a purely ministerial one. If the law direct him to perform an act in regard to which no discretion is committed to him, and upon which the facts existing he is bound to perform, then the act is ministerial, although depending upon a statute which requires in some degree a construction of its language by the officer. Unless this be so, the value of this writ is very greatly impaired. Every executive officer whose duty is plainly devolved upon him by statute might refuse to perform it, and when his refusal is brought before the court he might successfully plead that the performance of the duty involved the construction of a statute by him, and therefore it was not ministerial, and the court would on that account be powerless to give relief. Such a limitation of the powers of the court, we think, would be most unfortunate, as it would relieve from judicial supervision all executive officers in the performance of their duties, whenever they should plead that the duty required of them arose upon the construction of a statute, no matter how plain its language nor how plainly they violated their duty in refusing to perform the act required." (Roberts, Treas., v. U. S., 176 U. S., 231.) I have no doubt that mandamus is the proper remedy, provided the pleadings, which on this demurrer must be taken as true, make out a case showing that the plaintiff is clearly entitled to the relief sought ; and that being the holding, I will proceed to a consideration of the merits of the remaining questions. Those questions may be epitomized in one inquiry, to wit : " Was it the plain duty of the canvassing board not to count the returns from the precincts ques- tioned in the pleadings, to wit : Name of precinct. Wicker- sham. Sulzer. 25 10 7 10 13 3 8 3 Deering . 6 2 3 A 1 Vault 2 The proper solution of that inquiry depends upon the answer to one sub- sidiary question, to wit: Is the act of the legislature of 1915 providing for an official ballot and for a certain return to be made in case no official ballots were received by the election board mandatory or simple directory? If mandatory, then the canvassing board had no choice but to reject ; if directory only, then it did have discretion to reject or to count. If mandatory, then the demurrer should be sustained ; if directory, then the demurrer should be over- ruled and the proceedings quashed. STATUTE, WHEN MANDATORY. When is a statute mandatory and when is it directory? That question is fully answered in 36 Cyc, 1157, and many authorities are there cited upholding the text. To analyze those authorities or to add to them would but prolong this opinion to a greater length than I have at present time to devote to the matter. Suffice it to say, the principles laid down are truisms in the law. Cyc. says: "A mandatory provision in a statute is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory pro- vision is one the observance of which is not necessary to the validity of the proceedings. Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the legislature to be ascer- tained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other. * * * When a particular provision of a statute relates to some immaterial matter as to which compliance with the statute is a mere matter of convenience rather than substance, or where the directions of a statute are given merely with a viev/ to the proper, orderly, and prompt conduct of business the pro- vision may generally be regarded as directory. When a fair interpretation of a statute which dir James Wickeesham. Exhibit No. 15. 5/16/17. Eagle, Alaska, Alay 1^, 1917. Hon. James Wickee*sham. Washington, D. C: Compliance with your night letter, Barney R. Peppersack. Squire Lowry, and Charles B. Murphy answer yes. James S. McDowell declines answer. U. G. Myers. Exhibit No. 16. 5/16/17. War Department. Washington, May 15, 1917. I hereby certify that the following is shown by records on file in The Ad- jutant General's Office of the War Department : Barney R. Peppersack, private first class, Signal Corps, was accepted for enlistment at Paducah, Ky., and was enlisted February 23. 1914, at JefEerson Barracks. Mo., and was serving on November 7, 1916, in Alaska. Squire Lowry, private first class. Quartermaster Corps, reenlisted June 25, 1914, at Fort Winfield Scott, Cal., and on November 7, 1916, was serving at Fort Gibbon, Alaska. Charles B. Murphy, sergeant, Company G. Signal Corps, reenlisted September 25, 1916, at Fort Leavenwortli, Kans., and was serving in Alaska on November 7, 1916. WICKEKSHAM VS. SULZEE. 153 James S. McDowell, private first class. Company G, Signal Corps, was ac- cepted for enlistment at San Francisco, Cal. ; was enlisted February 26, 1915, at Fort McDowell, Cal., and was serving in Alaska on November 7, 1916. H. P. McCain, The Adjutant General. I hereby certify that H. P. McCain, who signed the foregoing certificate, is The Adjutant General of the Army, and that to his certification as such fuU faith and credit are and ought to be given. In testimony whereof I, Newton D. Baker, Secretary of War, have hereunto caused the seal of the War Department to be affixed and my name to be sub- scribed by the assistant and chief clerk of the said department, at the city of Washington, this 15th day of May, 1917. [seal.] Newton D. Baker, Secretary of War. By John C. Scofield, Assistant and Chief Clerk. Exhibit No. 17. 5/16/17. Teeeitory of Alaska, Goveenoe's Office, Juneau, December 29, 1916. Hon. James Wickeesham. Delegate from' Alaska, Washington, D. C. Deae Sie: According to an opinion of the counsel for the Territory made at the request of this office the canvassing board must meet not earlier than January 7 next nor later than January 16 next, for the purpose of canvassing the vote cast at the election of November 7 last. The board, therefore, will not meet earlier than January 16. You. as one of the candidates for Delegate, may desire to be represented at such meeting or meetings bj^ counsel. I am, yours, very truly, J. F. A. Steong, Governor, Member of Canvassing Board. Exhibit No. 18. 5/16/17. Washington, D. C, January 15, 1917. "Governor J. F. A. Strong. Member Canvassing Board, Juneau, Alaska. Letter received. Section 5, article 1, Constitution United States, provides each House shall be the .judge of the election, returns, and qualifications of its own members. The Alaska canvassing board has no authority under act creat- ing it to do more than tabulate returns, canvas and compile in writing, and issue certificate to candidate having the greatest number of votes- for Delegate on the face of the returns. Any contest or trial must be begun before the House of Representatives. See Hines Precedents, volume 1, section 423. Please give copy to Emory Valentine. Delegate from Alaska. Exhibit No. 19. 5/16/17. January 15, 1917. Hon. J. F. A. Strong, Governor of Alaska, Juneau, Alaska. My Dear Goveenoe : I have your letter of December 29, which reached my office this date, advising me that it was the purpose of the canvassing board to compile the returns and declare the result of the delegate election not earlier than to-morrow. Since I could not avail myself of an answer in writing I have this day sent you a telegram as follows : " Washington, D. C, January 15 1917. " Governor J. F. A. Steong, '^Member Canvassing Board, Juneau, Alnska. " Letter received. Section 5. article 1, Constitution United states, provides each House shall be the judge of the election, returns, and qualifications of its own members. The Alaska convassing board has no authority under act creating it to do more than tabulate returns, canvass and compile in writing, and issue certificate to candidate having the greatest number of votes for Delegate on the face of the returns. Any contest or trial must be begun before the House of Representatives. See Hines Precedents, volume 1, section 423. Please give copy to Emory Valentine." Respectfully, 154 WICKEESHAM VS. SULZEB. Exhibit No. 20. 5/16/17. Territory of Alaska, Governor's Office, Juneau, January 18, 1917. Hon. James Wickersham, Delegate to Congress, Washington, D. C. Dear Sir: I beg to acknowledge receipt of your telegram of January 15, with reference to tbe duties of the canvassing board. In reply I have to advise you that these duties were, I think, fairly well understood by the canvassing board, and it was not the intention of the' board to go behind the election returns. The notification sent you was formal and merely an act of courtesy, an identical notification having been sent to Mr. Sulzer. Tlie board mill not meet until Friday, the 19th instant, owing to the absence of Mr. Pugh, collector of customs, who has been absent from the Territory for some time. I believe that all of the election returns have been received except those from Bristol Bay and a few precincts on the Alaska Peninsula, and these. I understand, reached Seward last Saturday and should arrive here within a few days. A copy of your telegram was forwarded to Mr. Valentine as per your request. Yours, very truly, J. A. Strong, Governor. Exhibit No. 21. 5/16/17. (Copy.) Department of Justice, Nome, Alaska, Fehruary 12, 191", J. F. A. Strong, Governor, Chairman Canvassing Board, Juneau, Alaska. Sir: I have the honor to forward herewith a certified copy of affidavit of John Petrich and certificate of Alfred S. Kepner, judges of election, Deering voting precinct, and a certificate of the judges of election of the Utica voting- precinct, second division, in the matter of using special ballots at the general 1917 election in their respective precincts. Advisory telegram sent you this day. Yours, very truly, G. A. Adams, Clerk. United States of America, Territory of Alaska, ss: I, John Petrich, being duly sworn, upon oath depose and say that I was one of the judges of election of the Deering voting precinct. Territory of Alaska, for the election of November 7, 1916. That the election papers used at that election were all made by the judges, for the reason that the regular official ballots did not arrive in Deering in time for said election, and I am informed that they did not arrive for about two weeks thereafter. John Petrich. Subscribed and sworn to before me this 2d day of February, 1917. [seal.] Alfred S. Kepner, Notary Public for the District of Alaska. My commission expii'es May 12, 1918. I hereby certify that I was a judge of election at Deering on November 7, 1916, and have read the above affidavit, and the facts therein are true. Alfred S. Kepner. Indorsed : Filed in the office of the clerk of the District Court of Alaska, second division, at Nome, February 12, 1917. G. A. Adams, Clerk. By , Deputy. We the undersigned judges of election, held the 7th day of November, 1916. at the Utica voting precinct, in the Fairhaven recording district, hereby certify that at the time of said election there had been no ballots received, and Mr. Kepner, of Deering, had the form of ballots telephoned from Candle and re- peated it to the Utica, and we wrote the ballots, using the form as we re- ceived it. James W. Black, F. G. Henry, J. A. Chidester. WICKERSHAM VS. SULZEE. 155 United States of Ameeica, District of Alaska, ss: On this 18th clay of January, A. D. 1917, personally came before me, Thomas P. Roust, a notary public in and for said district, the within-named James W. Black, F. G. Henry, J. A. Chidester, to me personally known to be the identical persons described within and who executed the within instrument, and acknowledged to me that they executed the same freely, for the uses and pur- poses therein mentioned. Witness my hand and seal this 18th day of January, 1917. [seal.] Thomas P. Roust, Notary Public in and for the District of Alaska. My commission expires September 9, 1917. Indorsed: Filed in the office of tlie clerk of the District Court of Alaska,, second division, at Nome, February 12, 1917. G. A. Adams, Clerk. By , Deputy. United States of America, District of Alaska, Second Division, ss: I, G. A. Adams, clerk of the district court, for tlie District of Alaska, second division, do hereby certify that I have compared the foregoing copy with the original affidavit and certificate of judges of election, Deering and Utica voting- precincts, covering the matter of using special ballots at general 1917 election, now on file and of record in my office at Nome, in the District of Alaska, and the same is a true and perfect transcript of said original and of the whole thereof. Witness my hand and the seal of said court this 12th day of February, A. D. 1917. [seal of court.] G. a. Adams, Clerk. By W. C. McGuiEE, Deputy. [Indorsement.] No. . In the District Court for the District of Alaska, second division. Certified Copy of Certificate and Affidavit of Judges of Election, Deering and Utica Voting Precincts, Covering the Matter of Using Special Bal- lots AT General 1917 Election. Territory of Alaska. Go\Ti:RNOR's Office, Juneau United States of America, Territory of Alaska, ss: I. J. F. A. Strong, governor of the Territory of Alaska, and Chairman of tLd- Territorial Canvassing Board, hereby certify that the foregoing is a full, true, and correct copy of the original letter of transmittal dated February 12. 1917, signed by G. A. Adams, clerk of the district court, second division, Nome, Alaska, and of the certified copy of affidavit of John Petrich and certificate of Alfred S. Kepner, judges of election, Deering voting precinct, and certificate of the judges of election of the Utica voting precinct, second division, Alaska, in the matter of using special ballots in the general 1917 election in the precincts named. I further certify that the original of said letter, with the certified copies of the documents therein referred to, as above enumerated, was received at the governor's office on the 4th day of April, 1917, and that the same is now on file in said office, with the election returns of the general 1917 election. Witness mv hand and the seal of the Territory of Alaska this 4th day of April, A. D. i917. [SEAL.] J. F. A. STRONG, Governor of Alaska, Chairman of Territorial Canvassing Board. Attest : Charles E. Davidson, Ex Officio Secretary of Alaska. 156 WICKEESHAM VS. SULZER, Exhibit No. 22. 5/16/17. Office of the Postmaster General, Washington, D. C, May i//, 1917. I certify that the annexed letter addressed to Hon. James Wickersliam April 7, 1917, by the Second Assistant Postmaster General, relating to the mail serv- ice for Nnshagak, Dillingham, and other points on Bristol Bay, Alaska, during the summer, fall, and winter of 1916, is a true statement of fact as shown by the records and files in this department. In testimony whereof I have hereto set my hand, and caused the seal of the Post Office Department to be affixed, at the city of Washington, the day and year above written. [seal.] a. S. BURLESON, Postmaster- General of the United States of America. Post Office Department, Second Assistant Postmaster General. Washington, April 7, 1917. Hon. James Wickersham, House of Representatives. My Dear Mr. Wickersham : Referring to your personal inquiry to-day, I have the honor to inform you that the mail service authorized for Nushagak, Dillingham, and other points on Bristol Bay, Alaska, consists of one round trip a month from May 1 to August 31 on steamboat route No. 78070, Seward to Nushagak, and three round trips between November 1, 1916, and March 31, 1917, by carrier on emergency route No. 78235, Dilingham by Nushagak and Naknek to Cold Bay (n. o.). The last trip by boat of the season of 1916 on route No. 78070 arrived at Nushagak August 31, 1916. There was no further service authorized until the beginning of the winter period, November 1. The carrier under that authori- zation left Dillingham on his first trip December 1, 1916, and departed from Cold Bay (n. o.) January 8, 1917, without carrying any mail, because of the fact that the mail steamer on the route between Seward and Unalaska was unable owing to weather conditions to effect a landing at Cold Bay (n. o.). According to reports the first mail delivered on the route during the winter season of 1916-17 reached Dillingham February 8, 1917. It is very difficult for the mail steamer to make a landing at Cold Bay (n. o.), and it appears that the consequent irregular service on the connecting route from Dillingham to Cold Bay (n. o.) can not be avoided. Yours, very truly. Otto Praeger, Second Assistant Postmaster General. Exhibit No. 23. 5/16/17. JtJNEATJ, Alaska, March 2j, 1917. United States of America, Territory of Alaska, Toion of Juneau, ss: John Rustgard, being first duly sw^orn, deposes and says that the hereto attached tally sheet is a carbon copy of the official tally sheet prepared under the direction of the Territorial canvassing board during the canvass of the returns of the election held in the Territory of Alaska November 7. 1916: that said tally represents the results arrived at by the canvassing board before the writ of mandamus was served on the 2d day of March : that the attached carbon copy was received by deponent from the office of the surveyor general : that the latter official has refused to certify to said tally sheet as a true copy, for the reason that the original tally had to be subsequently changed pursuant to a writ of mandamus issued March 23, 1917. John Rustgard. Subscribed and sworn to before me this 24th day of March, 1917. [seal.] Alfred E. Maltby, Notary Public for the Territory of Alaska. 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CS*-l CM CO CM CO CM>0 O 0> CM »0 rH "3' CO O *^ 00 0> O »0 !>• i-t CO CO CO CO ^H CO OO ^ CM CO 1-1 CO 1-1 1-1 CM i-t CO rji lO ooiiocq CM H" CM CO t^ i-i-^i-(i-ICOCOOOt^T-II:^CMCM030CO-*t^-^C^C003COCSCM COOOCOt^CM i-t i-(CMlOr^i-l -^ CM 1-1 CO r^ 1-1 1-1 CO USUI CO CO CMi-l T-li-( CO fH 1^ coco -W CO <»Oi-^^i-^TlicOt^lOCMlOr^cOCM CMWCOCOO CD O i-t CO t^ OC CO • CO CO 00 i-i is* O CM • i-l CO -^ CO CO CO Wi i-I COOS'* in CO COOOCOlVr-1 ■ t-t rH ID CO ■* CM r-H • Id • i-H CM i-l C<» ■* Oi O CO |i-4 OCOi-H 05»n CMrH iH CO COOOtD03030>t»i-ICD»OCOOiOm-^COCOOi-)i9-»Oi-(COt^'*-*lOW3-*C000t^O5 T-l lO 1-1 »0 CO Tln-1 T-ICM 1-1 C^ 1-1 OOOQiJ'OOOO • 00 O t* W TJ1 I:^ lO C^ CO C^lOTTinoO'^i-ICM O5 00C-li-l CMCO lOoimc^cMiocDTPiooocRmf OO CM T-l VO i-IOOOOr-IOOCOCqoO «5i-i .coo lOCMCO»OlO -1-1 " •<*< ^ CO CD CO i-t 1-t '0300 • iH Oi ■* i-4 CO OO'^i-li-l'i-l" COCO ■ — ■^^ CO CD CO CO CM r-lCO ^i03i-i(NtJiI>^I:^OOCOCOOCOOOOO»-4^0'*CO»OCO-^ OOCMi-llO CO^Hi-lO 1-1 1-4 ■* OO ooio ■ o-*** CDCDOSw:)'* • ^H ■ Tti 1-H O i-< i-( (M CO CM CO i-l • CM O lO C!< T-( 1-1 -* CM i« 'OOOOl C^CM »Oi-l ^ ■^ r^CMiOl:^ CO m »0 lO 03 t* in • CD 00 -1 1^ »C 1-t O i-( 03 lO CM OOCOi-l(M CO ■* O 1-1 CO ■* CD ^ • rH t^ CO lO CM — ■ — CO 1-1 1-t ii-l t^ CM CO 1-1 ■'tl CO 03 CO t- Tfi OS O 00 00 • lO ■* CO 1-1 CM CO 1-1 03 'COi-IOCMCM r- ^1 — — Or~ 'CMO CMCM 'CM>0 CO CM CO t^ 00 05 CO ■ -Tt^ "<*< 03 O »0 O 03 ^ ■* ^ ^H CO CM t^ 1J1 CO CO 1-1 CM 03 1-1 1-1 inoii-ii-( 00 cor- CO CD 1-lCn N >o 00 1- 1-t lO CD CO t^ 1-1 CM CM t~ 03 CO-*i-IOOi-" 1-1 i-lioio 1-t lO CD CO t^ 1-1 ( 1-1 iiCM i-tc ■*i-i eo-*co CMiH coco CD-HOO— O:03t-C<(C0CDCOCOCO03CM t^i^i-t»0 1-1 COi-11-100 CO CO ■* 1-t t-om COt-COOO t- ii-li-l COi-f* 11-1 CO-* ilOi-lCMCOCM I 00 c3 03 O O c3 c3 1-. 03 ® •'3 O "*- M .H ^ ^ • ..^ . a-2 "S 03 • . a 3 M a OS 03 „■ S-p ® oiija o 13289—17- -11 162 WICKEBSHAM VS. SULZEE. ■S-o i. o ^^ '^ -<=; r*- ^ 3 <» « rC > o -« OSt-i-^CC>»-tOS'V'^COOt^ai (M l^rtNrl 1-ICO.-1 Cq ICI (N O IM 00 1-1 CT CS| 03 ■ON •1-HCOO '(NIM O CO tH OS lO ' 03 -1^ O "* t-H • I-* 1-H 50 03 rH -H 1-1 .-H ■S9A •J9:j9d; 'irajg ■ rt rl 1-1 CO lO i-(i-l -NM iTPtO^CO ilN '(Ni-I icDt-i-l 'H 'n 'mq-es rHt^COC^CO -CO • iH U5 C5 IC CO lO CO O CO (N • tO CO i-l »0 Oi CO t ' C t* 1-t CO TJi Tji ■V *Ai 'IBUJA 1-1 iC^S 'i-li-i ■ 00 00 1-1 i-l Cq TT 1-1 O Tji 00 iCQi-li-t ii-105CC^t^COIOCOW3i-t CO r-1 1-1 1-1 1-1 CO 10 1-1 lO 1-1 1-1 ■3 90r 'n99I0 ! CO iCR-ai^^ •AV nqor 'nana COi-c 11 'i-l •tH t-i-l 1-1 lO) 1-1 ■uti 1-1 ilOCOTJiCO • O 05 -^ ^ CO 00 CO CO C0 0> CO icOCdi-l icOi-l •nea 'pn^iagqatig • 10 1-1 COCq OS CO 1-lCO ■w iM 1-1 00 1^ 00 ^ t^ t^ CO 'locq iiooseo 1-I1-1 1-1 CD CO • • (M CO'«. COCO -COOSCSCOTti • Ir^ OS 10 CCl -^ 00 00 t^ CO lO CO O CD 'COC0»O coi-1 t^ t— iHCO -i-ieo 1-1 •r~'«co it-ooos ■ e^ rH 00 10 in 1-1 • i-i co Co lai tji oo t 1 .-1 "3 1-1 rH ■ N COlCCOOOSOOTtiiJiCOcD-^COCOCOCOOSt^COOSCOOSCOCOOSt^CO OS rH 1-1 1-1 tH -^ CO CO IC t^ -iiiCOi-lOCOOCOOi-t»-IOSCOCO^HOOOO'^COi-1t^t^W3-^COOOOO CO 1-1 1-1 Cq CO coco CD CD 1-lCO C^ 1J1 CO TJ1 CO • 110 coco 10 O OS OOCO OOCO iCOi-l 1 • CO 1-1 3«oo6ooPftPWWWf"^^P^I»i|i»f^P^ ^§1 a3 Jii'" ' bc2^ el WICKEESHAM VS. SULZER. 163 '*N^OiTt^osGccoccocooiCTluDl»c^lo^^^*05oocoC5c^coo(Nr^cNo^^^(^^fCcDo^H •^cDCsI dec lO -^ l-H 1-1 1-t r-* CO "* »ooo r ■OO^-trHC^CDirtiT-liCCOiCiOi-iTPCsIr-iCCCD'^OOi-cCOOiOiMOOiOi-liO'^ •1-Hi-H c^ r-H 1-H i-HrH ^-^ ^ ^ (M oooocoecicot~^oooN05i-ici— ir*cocoT-(oioccioooc^a3TpTPcc co 1 ,_| ,— I i-H Tjl CO 1-t T-t 1-t 00 C^ CO r-H CO .— t Cfl CO CO Tji (N i-l CO cs t>- AO CO r-1 • CO CS» ' iC t* CO 00 i-H CO • CO 1-t OS iC C^l ■^ CO CD O • Cfl CO r-i cO »-h CO lO CO i— I '-(Ot^ooooocoiOrHt--vCTrcoioiOi— icoo*^coTriooOi— icoioiooscooocoiocodiOi-i -* CO'**'*-! .-(CO coco .-1 1-1 cq c*^ c-^ i-i "^ 1-1 '^ ^rr i-h m ■<** CO N W lO OO lO IC CO (N U3 00 U5 lO (M 00 1-1 O O l> CO 1^- -^ •OCOt-l'^ • '■*' CO 05 l>> N T-H '(Ji CO -^ O lO CO CO "* (N uO CO 00 05 CN rH '1-1 tH 4T-I03I CO T-tCO t^ CO Tt* ■ 1—1 1— I CO -co • T-1 ^ lO Tf' CO lO lO 1— I IC . r-t t* ,-1 C^ CS| 1— IC 00 Ofl 'CO O 1-1 ^ Tf '^ (N Oi CO 1-1 CO i-l Oi CO CQ • r-t (N 'T-lOC CO i-( OO'^i-t-'S^MCOiOCOOi OSOSC^Tt*I^-CO(MT-Hi-(C^«Tf*r-4 ■uO(NCOt^Oi 00 (N T-1 lo ' CO CO !>• lo r^ oo 1— I Oi 1— I i-It-H . ^ ^ ^ 00 0^05 CD(N » Cq lO t^ CO 1-1 C9 CO 00 C^ 'CflC^I^-OOO « CO -* t-l I>- c^ '-**oa '-^ c^ C0»0 i-< lOOO t^CO '00 'i-HOCOi-t • 1-H (N 1-H CO <;0 t— lO 'CO lO CO T-i 'CO ■'Ot-i-)^ -1-1 <>» lO CO iC CO 05 r^ C3S 1-1 (M CO ■TjicO-" -f-l CO t^- CN CO CD C<1 W CS 'T-ir- '(Ni-iNCq ■^ uo cq c^ CO ■ CO ■* t-- • ■'f CO cq C0 1-« o i i-i ■Cij lo CO r^ u^ 00 ■ Oi 1-1 »o •<«' TP CO tc ic CO o CO • co i>- eo c^ t> cq r-i oo c^* tp i> oo r^ oo co r-i co ^N rH r-t . 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United States of America, District if Columbia, ss This is to certify that the undersigned notary public in and for the District of Columbia was present on the 16th day of May, 1917, in office room No. 160 in the House Office Building, Washington, D. C, and took the deposition there of James Wickersham, for the contestant in the contested election case of James Wickersham, contestant, v. Charles A. Sulzer, contestee, from the Terri- tory of Alaska ; that Jam3s Wickersham appeared for himself in his own proper person, and Charles A. Sulzer appeared personally and by his attorney, James T. Lloyd; that the said James Wickersham testified after having been first duly sworn by me, and was fully cross-examined by the contestee and his said at- torney ; that the said James Wickersham in addition to his testimony oflfered in evidence a number of documents all of which are attached to his deposition and marked as exhibits thereto ; that prefixed to his said deposition herewith is the original notice of contest filed by the said James Wickersham and served upon the said contestee, and also his reply and answer to the answer of the contestee herein; that the foregoing testimony is a full, true, and correct statement and copy of the testimony of the said James Wickersham signed by him and sub- scribed and sworn to before me, and the attached documents are the true and original documents filed by the said James Wickersham as exhibits and as a part of his testimony and deposition. In witness whereof I have hereunto set my hand and my notarial seal at Washington, D. C, this 17th day of May, 1917. [SEAL.] D. B. Mull, Notary Public in and for the District of Columbia. My commission expires May 1, 1918. PROCEEDINGS ON BEHALF OF CONTESTANT. Now on this 12th day of June, A. D. 1917, at the hour of 10 o'clock in the- forenoon, at the city hall in the town of Fairbanks, fourth division. Territory of Alaska, before me, Henry T. Ray, a notary public in and for the Territory of Alaska, duly commissioned and qualified, being the officer designated by James Wickersham, contestant, to take testimony of witnesses respecting the contested, election of said Charles A. Sulzer in the notice served upon said Sulzer, con- testee, by said Wickersham, contestant, on the 25th day of May, A. D. 1917, and being the time and place specified in said notice, for the taking of depositions or testimony of witnesses respecting said contested election of said Charles A. Sulzer, contestee aforesaid, there appeared Robert Loghry, a witness duly and regularly subpoenaed by writ of subpoena issued by me on the 29th day of May, A. D. 1917 (which subpoena with the proof of service thereof is hereto attached and made a part hereof). At this time Cecil H. Clegg, Esq., and John A. Clark, Esq., appeared and offered written objection to the proceedings herein and the taking of testimonj^ stating that they represented Mr. Sulzer; upon request being made by me to show proper authority from Mr. Sulzer to represent him as attorneys, Mr. Clark stated that they acted under authority and appointment of the Democratic divisional committee, which committee had been requested by Mr. Sulzer to employ competent counsel to represent him at this hearing, and that he, Clark, would produce the telegram or an authenticated copy thereof as soon as the same could be obtained. Relying upon the statement of Mr. Clark the written objections were accepted, pending the production of the telegram from Mr. Sulzer, or copy thereof, and thereupon Robert Loghry was called and asked to be sworn and testify as a witness. Mr. Loghry refused to be sworn and refused to testify as requested, stating that he had been directed by his superior officer. First Lieut. M. H. Faust, stationed at Valdez, Alaska, not to be sworn or to give testimony in this proceeding unless the officer before whom the depositions were to be taken showed proper authority so to do under chapter 8, Revised Statutes of the United States, 1878. I thereupon read to the witness Loghry the telegram dated at Washington, D. C, May 25-26, 1917, signed by James Wickersham, designating Henry T. Ray, notary public for Alaska, to take depositions in behalf of said Wickersham in the town of Fairbanks, Alaska, in the contest proceedings aforesaid, and also read to said Loghry section 116 of chapter 8, Revised Statutes of the United States, prescribing penalty for failure of witnesses to attend or testify^ WICKERSHAM VS. SULZEK. 165 and on further demand being made upon said Loghry to be sworn and testify lie refused so to do for reasons above stated. Adjournment was then talien until 1 o'clocls p. m. Now at 1 o'clock p. m., Cecil H. Clegg, Esq., being present, appeared James G. Coleman. Durwood M. Hocker, William A. Kirby, James E. Pegues, Austin Li. Foster, Thomas G. Griffin, Harry Shutts, Raphael Myerson, Frank R. Moore, and Charles Agnetti. witnesses subpoenaed herein, and each being requested by me to be sworn and testify, each and all refused so to do, stating as grounds for refusal that they were acting under orders from their superior officer, said First Lieutenant M. H. Faust aforesaid. All witnesses were at this time excused until Thursday, June 14, 1917, at 1 o'clock in the afternoon. At this time I made demand upon Cecil H. Clegg to produce the telegram authorizing him and said John A. Clark to appear and act for said Sulzer, and said Clegg then and there refused so to do, stating that he had been employed by the Democratic divisional committee to represent said Sulzer, the contestee, stating further : " I am a practicing attorney ; I have seen no authority which is in their (the committee's) possession from Mr. Sulzer and therefore I do not feel it necessary to furnish you with any express authority direct from Mr. Sulzer." Whereupon Mr. Clegg presented the following letter : E. W. Griffin, Chairman. Thos. A. McGowau, Vice Chairman. F. W. Whitely, Secretary. DEJIOCKATIC DIVISIONAL COMMITTEE, EOUETH DIVISION. Divisional Committer : E. W. Griffin, Thos. A. McGowan, W. F. Whitely, F. L. Jewett, H. R. Wallace, C. G. Geraghty, H. J. Atwell. Faikbanks, Alaska, , 191 — . To wlioin, it may concern: This is to certify that under, and by virtue of, direct authorization from the Hon. Charles A. Sulzer, we hereby appoint, and designate, John A. Clark, Esq., and Cecil H. Clegg, Esq., to represent the said Hon. Charles A. Sulzer at the Delegate contest, held in Fairbanks on the 12th day of June, 1917, and until the same is completed. Dated at Fairbanks, Alaska, this 12th day of June, 1917. W. G. Cassels, Chairman Democratic Divisional Committee. I thereupon served written notice upon W. G. Cassels. whose signature ap- peared to the foregoing letter, in words and figures following: Fairbanks, Alaska, June 12, 1917. W. G. Cassels, Esq. Chairman Democratic Divisional Committee, Fairbanks, Alaska. Dear Sir: You will please furnish me with the original or a duly authen- ticated copy of telegram from Hon. Charles A. Sulzer to you or to the Demo- cratic divisional committee upon which is based the authority to appoint John A. Clark, Esq., and Cecil H. Clegg, Esq., to represent said Hon. Charles A. Sulzer at the hearing now held before me and the taking of depositions or tes- timony of witnesses respecting the election of said Sulzer as Delegate to Con- gress from Alaska which is being contested by James Wickersham. I shall be at my office in the city hall, at Fairbanks, Alaska, until 5 o'clock p. m. this day, at which time and place I shall be ready to receive said proof of authority. Respectfully, [seal] Henky T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. The hour of 5 o'clock having arrived, and said W. G. Cassels, Cecil H. Clegg, John A. Clark, or any other person, having failed and refused to produce said telegram from said Charles, A. Sulzer authorizing said Democratic divisional committee, or any other person, to appoint said Clegg and Clark, or either of them, or any other person, to so appear and represent said Sulzer, the entering 166 WICKEESHAM VS. SULZEE. of said Clegg and Clark as attorneys for said Snlzer in this hearing above noted is hereby canceled, and the acceptance and filing of the written objections Xiresented at the beginning of this hearing is' withdrawn from the files and record herein. The further hearing in this proceeding is liereby adjourned until Thursday, June 14, 1917, at 1 o'clock in the afternoon. [seal] Henry T. Ray, Notary Public in and for Alaska. My commission expires .June 7, 1920. Now, on this 14th day of June, 1917, at the hour of 1 o'clock in the afternoon, at the city hall in the town of Fairbanks, Alaska, the hearing in the matter of the contested .election of Charles A. Sulzer as Delegate to Congress from Alaska, James Wickersham, contestant, was resumed before me, there being present Guy B. Erwin, attorney for James Wickersham, contestant, and John ■A. Clark and Cecil H. Clegg, attorneys for Charles A. Sulzer, and all witnesses subpoenaed herein. Counsel for Mr. Siilzer offered written objections to the taking of the depo- sitions of any witnesses at Fairbanks, Alaska, which said written objections were accepted and are hereto attached and made a part hereof. Consul for Mr. Sulzer also made oral objection to the taking of depositions by the notary on the 14th day of June, same having been continued from the 12th day of June to the 14th, the statutes prescribing adjournment may be taken from day to day and not for two days. The folloAving proceedings were then had : ROBERT LOGHRY, being first duly sworn, testified as follows : Q. State your name and age. — A. Robert Loghry, 'age 40 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Master signal electrician at Fairbanks, Alaska. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Leavenworth. Kans. Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation since coming to Alaska? — A. It has. Q. Did you on November 7, 1916, vote hi Fairbanks precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. I refuse to state. Q. What reason do you give for your refusal? — A. I don't know as I have to give any reason. I do not think the notary has proper authority to take my testimony. (The notary public here read to the witness sec. 116, chap. 8, Rev. Stat. U. S., 1878, providing penalty for failure to attend and testify, and upon further de- mand to the witness to flnswer the question the witness refused so to do.) By Mr. Cle&g, counsel for Mr. Sulzer : Q. You are a citizen of the United States? — A. I am. Q. Prior to November 7, 1916, how long had vou resided in Alaska? — A. Since June 10, 1915. Q. You are a married man, are you not? — A. I am. Q. State whether or not your family has resided here with you during that time. — A. Yes. Robeet Loghey. Subscribed and sworn to before me this 14th day of June. 1917. [seal.] Henky T. Ray, Notary Public in and for Alaska, My commission expires June 7, 1920. JAMES G. COLEMAN, being first duly sworn, testifies as follows : Q. State your name and age. — A. I do not care to make any statement per- taining to myself concerning this election unless you produce your authority to act or the notice or a copy of the notice that Mr. Sulzer has been notified by Mr. Wickersham or an agreement entered into by the parties named above regarding tlie contest of election. (Notary here read telegram dated May 25-26, 1917, dated at Washington, D. C, signed by James Wickersham, authorizing notary to take depositions WICKEKSHAM VS. SULZEE. ^ 167 of witnesses in contest proceedings Wickershnm v. Sulzer, M'hich is hereto attached and made a part hereof.) Q. (by witness Coleman). Have you any authority other than the telegram read, or notification that Mr. AVickersham had notified Mr. Sulzer in writing, or any agreement between them? — A. (by notary. I have not. By Mr. Erwin : Q. You still refuse to state your name and age? — A. I do. Q. What was your business, occupation, or profession on November 7, 1916? — A. I refuse to answer. Q. Did you come to Alaska in the service as soldier? — A. I refuse to answer that. Q. In your refusals to testifv, are you acting under the advice of any per- son? — A. I refuse to" answer that. (The notary here read to the witness sec. 116, chap. S, Rev. Stat. U. S., 1878. providing penalty for failure to attend and testify.) Q. You still refuse to testify after hearing that section read? — A. I do. James G. Coleman. Subscribed and sworn to before me this 14th day of June, 1917. [seal.] Henry T. Ray, My commission expires June 7, 1920. Notary Public in and for Alaska. Witnesses Griffin and Myerson. upon satisfactory showing that they had not voted at the election on Novem1)er 7, 1917, were excused from: further attendance. At this time the notary adjourned the hearing until June 15, 1917, at 1 o'clock p. m.. and excused all witnesses until that time. Mr. Clegg, of counsel for Mr. Sulzer, entered objection to adjournment on the grounds that all the witnesses are now present, and that the officer, Henry T. Ray, as notary public, has now no authority under the statutes to postpone or continue the proceedings until to-morrow at the time set. [seal.] Henry T. Ray, Notary Public in and for Alaska. ]\Iy commission expires June 7, 1920. Now, on this 15th day of June, 1917, at the hour of 1 o'clock in the afternoon, at the city hall in the town of Fairbanks, being the time and place fixed for further hearing and taking testimony in the contest proceedings, there being present Guy B. Erwin, Esq., attorney for James Wickersham, contestant, and no one appearing for Charles A. Sulzer, contestee. and none of the witnesses appearing, the hearing was adjourned by me to 16, 1917, at 1 o'clock p. m. [SEAL.] Henri' T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Now, on this 16th day of June, 1917. at the hour of 1 o'clock in the afternoon, at the city hall in the town of Fairbanks, Alaska, to which time and place the hearing and taking of testimony herein had been adjourned, there being present Guy B. Erwin, Esq., attorney for James Wickersham, contestant, and no one appearing for Charles A. Sulzer, contestee, and none of the witnesses subpceenaed herein appearing, the hearing was adjourned by me to Monday, June 18, 1917, at the hour of 1 o'clock p. m. [SEAL.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. On this 18th day of .Tune, at the hour of 1 o'clock in the afternoon, at the city hall, in the town of Fairbanks, Alaska, to which time and place the hearing and the taking of testimony herein had been adjourned, there was present Guy B. Erwin, Esq., attorney for James Wickersham, contestant herein, and no one appearing for Charles A. Sulzer, contestee herein, and none of the wit- nesses subpoenaed appearing in obedience to said subpoena and the verbal notice given such witnesses by me of the time and place to which the proceedings had been adjourned, the hearing and the further taking of testimony herein is hereby closed. 168 WICKERSHAM VS. SULZER. Dated at Fairbanks, fourth division. Territory of Alaska, tliis IStli day of June, A. D. 1917. [SEAL.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. United States of America, Territory of Alaska, Fonrth Division, ss: I, the undersigned, notary public in and for Alaska, duly commissioned and qualified, being the same person designated by James Wickersham in his notice of contest to Charles A. Sulzer, contestee, under date May 25, 1917, to take depositions and testimony of witnesses respecting the election of said Charles A. Sulzer, contestee, as Delegate from Alaska to the Congress of the United States, hereby certify that the within and foregoing ten (10) sheets of typewritten matter (including this sheet) constitute the record of all the pro- ceedings had before me, and of the whole thereof, in the town of Fairbanks, Alaska. And I further certify that the hereto attached papers, to wit. telegraphic notice to take depositions, subpoena and proof of service thereof, copy of tele- gram authorizing attorneys to appear for Sulzer, objections of Mr. Sulzer to taking of depositions, and copy of letter from United States district attorney to Loghry are all the papers received by me and filed herein. Witness mv hand and notarial seal at Fairbanks, Alaska, this 18th day of June, A. D. 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Form 135D. 1915. signal corps, united states army. TELEGRAM. Received at 3 v sn 246 NL— P CS. Washington, D. C, May 25-26, 1911. Henry T. Ray, Fairbanks, Alaska. Have to-day notified Sulzer in writing that you will take testimony as notary public of 33 soldiers who were challenged in Fort Gibbon precinct election November 7 (see election returns Fort Gibbon precinct for name challenged soldiers) ; take testimony on Tuesday, June 6. 10 o'clock forenoon, and daily till completed at public schoolhouse in Tanana ; get names challenged soldiers off returns in office, clerk district court, Fairbanks ; you and Irwin go Tanana, subpoena each soldier who voted, have Irwin ask each soldier if he voted for Sulzer. write out his statement, and have him sign and swear ; evidence must be taken under chapter 8. sections 105 to 330. United States Revised Statutes, 1878; forward evidence Clerk House Representatives under section 127, said chapter 8 ; Irwin will act at attorney and you as notary ; get every soldier who voted for Sulzer on record, also take similar testimony every soldier and Signal Corps man in Fairbanks who voted for Sulzer November 7; notice covers Fairbanks hearing also; hearing Fairbanks fixed for June 12 at 10 o'clock, forenoon, at city hall ; soldiers are not voters and I want to show they voted for Sulzer ; do not fail ask my friends give you assistance ; contest going along satisfactorily; expect to go Tacoma for month and then back to Wash- ington ; thiiik advisable keep this telegram confidentially and not make it public ; enemy will not take advantage if we keep quiet. .Tames Wickersham. subpcena. United States of America, Territory of Alaska. Fourth Dii-ision, ss: The President of the United States of Amei'ica, greeting: To Robert Loghry. James G. Coleman, Harry Shutts, John E. Pegues. Charles Agnetti, Raphael Myerson, Herman B. Stenbuck, Frank R. Moore, Austni Foster, Thomas Griffin, William Kirliy, Durwood M. Hocker. You are hereby required that, all and singular business and excuse being set aside, you appear and attend before the undersigned, Henry T. Ray, a notary public in and for Alaska, at the city hall, in the town of Fairbanks, WICKEESHAM VS. SULZEE. ^ 169 Alaska, on the 12th day of June, A. P. 1917, at the hour of 10 o'clock in the forenoon of said day, then and there to be examined on oath respecting the election of Charles A. Sulzer, as Delegate from Alaska to Congress, which is Toeing contested by James Wickersham ; and if you refuse or neglect to attend and testify as above required, you will be subject to penalty and liable to indictment as prescribed by section 116, chapter 8, Revised Statutes of the United States, 1978. Witness my hand and notarial seal this 29th day of May, 1917. [SE.-\L.] Henry T. Ray. Notary Puhlic in and for Alaska. My commission expires June 7, 1920. Moore served, 7th ; rest served, 6th ; Stenbuck not served. — G. B. E. TJnited States of America, Territory of Alaska, Fourth Dimsiori, ss: G. B. Erwin, being first duly sworn, on oath deposes and says as follows: That I received the hereunto annexed subpcena on the 29th day of May, 1917, and that I duly and personally served the same on the therein-named Robert Loghry, James G. Coleman, Harry Shutts. John E. Pegues, Charles Agnetti, Raphael Myerson, Austin L. Foster, Thomas G. Grifhn, William A. Kirby, and Durwood M. Hocker, at Fairbanks, Alaska, on the 6th day of June, 1917, and on Frank R. Moore, at Fairbanks, Alaska, on the 7th day of June, 1917, l)y delivering a copy thereof to and leaving the same with each of the said persons named. G. B. Erwix. Subscribed and sworn to before me this 11th day of June, 1917. [seal.] Wallace Cathcart. A Notary Puhlic in and for the Territory of Alaska. My commission expires June 9, 1919. (Copy.) Washington, D. C, June 13, 1911. John A. Clark, Fairbanks. You and Cecil Clegg, hereby authorized, represent me in case Wickersham v. Sulzer. Chas. a. Sulzer. 3.22 p. m. Accepted and filed this 14th day of June, 1917. [seal.] Henry T. Ray, Notary Public. •OBJECTIONS OF MR. SULZER TO THE TAKING OF THE DEPOSITIONS OF ANY WITNESSES AT FAIRBANKS, ALASKA. On behalf of Mr. Charles A. Sulzer we object to the proceedings herein and to the taking of any testimony, and especially to the taking of the testimony of the following witnesses, viz, Robert Loghry, James G. Coleman, Durwood M. Hoeker, William A. Kirby, John E. Pegues, Austin L. Foster, Thomas G. Grif- fin, Harry Shutts, Raphael Myerson, Frank R. Moore, and Charles Agnetti, upon each of the following grounds : That no sufficient, proper, or legal notice was given to Mr. Sulzer, as required by section 108 of chapter 8, Revised Statutes of the United States, in that the alleged notice of the taking of these depositions failed to state at what particu- lar place within the town of Fairbanks said depositions would be taken ; also because said alleged notice failed to state the name or names of the witnesses who were to give testimony in these proceedings and did not state the name of any witness whose deposition was to be taken under said proceedings ; also on the ground that the residence of the witnesses was not stated in said alleged notice nor the residence of any witness. On the further ground that no notice whatever, nor any legal notice, has been given to Mr. Sulzer as to the proof intended to be offered by Mr. Wicker- sham, or as to the facts alleged by him as the basis for this contest, and that Mr. Sulzer, the returned member, has no information whatever as to the issues 170 WICKEESHAM VS. SULZEE. to be presented by this contest, nor has any notice as to the issues in this con- test been furnislied or given in any way to any of the witnesses wlio are to be examined. On the furtlier ground that no copy of tlie notice of contest or of the answer of Mr. Sulzer to the facts alleged 'or attempted to be presented by Mr. Wicker- sham is in the possession of the officer taking these depositions, and therefore the same can not be prefixed thereto when taken for the purpose of being trans- mitted to the Clerk of the House of Representatives, as provided by section 126 of said chapter 8 of the Revised Statutes of the United States. It is further objected that the questions propounded, or proposed to be pro- pounded, to each and every witness so to be examined at Fairbanks, Alaska, on the 14th day of June, 1917, are not shown to be within any of the issues pre- sented by the notice of contest and the answer required to be filed in this mat- ter, and said witnesses can not know, and do not know, whether or not the questions propounded to them on behalf of the. contestant are proper questions or are within the issues, or any issues, presented in said contest, nor is it pos- sible for Mr. Sulzer to know what the facts are, required to be developed by him in the cross-examination of said witnesses for the purpose of meeting their testimony on direct examination. It is hereby stipulated and agreed by the officer before whom these deposi- tions are taken that the foregoing objections were made to the entire proceed- ings herein and to the taking of the testimony of each of the above-named wit- nesses before the said proceedings were commenced and before any of the said witnesses offered or gave any testimony in said proceeding, and that for the pur- pose of shortening the record and facilitating the progress of said proceedings the foregoing objections are to be considered separately as to each witness whose deposition is taken herein, and that but a single statement of said objec- tions need be set forth in the returns made on said depositions. Cecil H. Clegg, John A. Clark, Attorneys for Mr. Sulzer. G. is. Eewin, Attorney for Mr. Wickersham. [seal.] Henry T. Ray. Notary Public for Alaska, Dated June 14. 1917. June 14, 1917. Robert Loghry, M. S. E., Signal Coi'ps. Fairbanks, Alaska. Sir : Replying to your communication of June 14, 1917. inclosing correspon- dence re contest of Wickersham against Sulzer, In the House of Representatives of the United States, will say : First. That contested elections of seats in the House of Representatives are provided for by chapter 8 of the Revised Statutes of the United States of 1878. Second. Under the fourth subdivision of section 110 in said chapter 8 a notary public is authorized to take depositions for either of the contestants. Third. Inasmuch as a notary public is not a court of record, he has no authority to issue subpoenas and take depositions. Therefore before any person is bound to respond to a subpoena issuecl by a notary public the notary issuing the same must show affirmatively his authority under the provisions of said chapter 8. Fourth. The authority that must be shown by the notary consists, of the following : (a) He must have in his possession a copy of the notice of contest which states particularly the grounds upon which the contestant relies in the contest. (b) He must have in his possession a copy of the notice that depositions will be taken before him at a certain time and place, which notice must specify the name of the witnesses whose depositions they expect to take, together with their places of residence, which notice shall contain the name of the notary public before whom the deposition will be taken. (c) He must have in his possession proof that the notice of contest was served on the opposing pai-ty, also proof that the notice of the taking of depositions was served on the opposing party. (d) Proof of notice of the taking of depositions will not be necessary if the notary has in his possession a copy of a stipulation entered into between the parties which waives proof of the official character of the officer taking the deposition, and waives notice of the taking of the depositions. WICKERSHAM VS. SULZEE. % 171 (e) Witnesses are not required to answer any questions which are not con- fined to the proof or disproof of tlie facts alleged or denied in the notice ol con- test and the answer thereto. Therefore it is necessary in all cases that a copy of all notices of contest must be in the possession of the notary public, ana the witnesses permitted to inspect the same, so that he may, if he desires, limit his answers to the questions involved in the contest. (/) If the notice of contest provides that the taking of testimony may be adjourned from day to day, then the notary public will have the right to adjourn the same from day to day, otlierwise not. and before the notary public can require a witness to testify at an adjourned hearing lie must .snow the copy of the notice of the taking of said depositions, which notice must show such authority to adjourn from day to day, and in my opinion, an adjourn- ment for two days is not an adjournment from day to day, and such adjourn- ment in any event would be unauthorized. Fifth. Under the strict rules of law the notary would be required to have authenticated copies of these two notices, which copies should be signed by the contestant issuing the same in his own handwriting, but owing to the fact that Fairbanks is so far distant from Washington, D. C, and it would therefore perhaps be impossible to procure depositions within the time limit in said chapter 8, I would advise that you respond to a subpoena issued by a notary public, having telegraphic copies of said documents, together with the proof of service of the same, also made by telegram, or if the notary has a telegram showing an agreement between W^ickersham and Sulzer for the taking of these depositions, such telegram will take the place of the notice of taking depositions and proof of service thereof. Answering the second paragraph of your communication, I will say that there is nothing in the law that would prevent, so far as I know, any soldier from appearing before any notary public, or private individual, man or woman, and giving a deposition, providing they to do so, but there is no law to compel them to appear before the notary public and testifying in an election contest in the House of Representatives, except as above stated. Yours, very truly. (Signed) R. F. Roth, Uniiecl States Attorney. A true copy. Robert Loghrt, M. S. E., Signal Corps. Received and filed June IS, 1917. [seal] Heney T. Ray, Notary Piihlic in and for Alaska. My commission expires June 7, 1920. subpoena. United States of America, Territory of Alaska, Fourth Division, ss. The President of the United. States of Ameriea. Greeting: To Steven Bauer, Nathan 0. Hatfield, Michael Sullivan. Hugh T. Phillips, Cleveland Douglas, Joseph Grabowski, John H. Davis, Thomas J. Galvin. Silas Hewitt, Daniel Doherty, Jasper L. Moser, Wm. E. Wood, Albert J. Hass, Daniel B. Allen. W. H. Shannon, John D. McNeeley. Walter H. Dehas. Orvel Jones, George W. Pennington, Louis G. Selk. Ralph .7. McGonigle. Clarence Hefron. Frederick L. Huffman. Harry F. Clark, Lester B. LeGier, John O. Sherlock, Edward .J. Toland, Basil Fitzwilliam. Ralph O. Wilson. Sidney Bridgewater, Joseph Barton, T. Drury, Melvin Jones, and Charles E. Feder. You are hereby required, that, all and singular business and excuse being set aside, you appear and attend before the undersigned, Henry T. Ray, a notary public in and for Alaska, at the public-school house in the town of Tanana. Alaska, on the 6th day of .June, A. D. 1917, at the hour of 10 o'clock in the forenoon of said day, then there to be examined on oath respecting the election of Charles A. Sulzer. as Delegate from Alaska to Congress, which is being contested by .James Wickersham, and if you refuse or neglect to attend and testify as above reqiiired, you will be subject to penalty and liable to indictment as prescribed by section 116, chapter S, Revised Statutes of the United States, 1878. Witness my hand and notarial seal this 31st day of May, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. Mj commission expires June 7, 1920. 172 WICKEESHAM VS. SULZER. I hereby certify that I served the within subpoena upon Charles E. Feder, Ralph J. McGonigle. Clarence Hefron, Ralph O. Wilson, Louis G. Selk, Fred- erick L. Huffman, Melvin Jones. Thomas F. Galvin, Steven Bauer, Cleveland Douglas, Albert .T. Haas, Michael Sullivan, Daniel Doherty, John D. McNeely, Lester B. LeGier, Sidney Bridgewater, William E. Wood, Harry F. Clark, Joseph Grabowski, Joseph Barton, W. J. Shannon, John H. Davis, George W. Pennington, Nathan C. Hatfield, Basil Fitzwilliams. Orvel Jones, Silas Hewitt, Joseph Drury, Hugh T. Phillips. Daniel B. Allen. John O. Sherlock, and Edward J. Toland, on the 1st day of June A. D. 1917, at Fort Gibbon, Alaska, by reading the original and delivering a copy thereof to each of said persons in this return named, personally. I was unable to find Jasper L. Moser and Walter H. Dehas. Dated at Tanana, Alaska, this 1st day of June, 1917. [seal.] Henry T. Ray, 'Notary Public in and for Alaska. My commission expires .Tune 7, 1920. United States of America, Territory of Alaska, Fourth Division, ss: Now on this 6th day of June, 1917, at the public-school house in the town of Tanana, fourth division, Territory of Alaska, at the hour of 10 o'clock in the forenoon, before Henry T. Ray, a notary public in and for Alaska, the officer designated in the notice of the above-named contestant, James Wickersham, to Charles A. Sulzer, the contestee, under date of May 25, 1917, to take deposi- tions of witnesses on behalf of said contestant, James Wickersham, D. F. McClure, a notary public in and for Alaska having been selected by R. S. McDonald, the agent or attorney of said contestee Sulzer officiating with said notary public Henry T. Ray, and R. S. McDonald, the agent or attorney of said contestee Sulzer being present, the following named persons, who had been duly and regularly served with subpoena issued by said Henry T. Ray, notary public as aforesaid (which said subpoena is hereto attached and made a part hereof), appeared and being first duly sworn, each upon his oath testified as follows respecting said contested election of said contestee Charles A. Sulzer : Before proceeding to the taking of testimony R. S. McDonald tendered telegram from Charles A. Sulzer, received by himself, as authorization for acting as his agent. It read as follows : ^' R. S. McDonald, Tanana: " You are hereby authorized represent me at hearing before Henry Ray at Fort Gibbon in delegate contest case Wickersham v. Sulzer. " Charles A. Sulzer, Delegate." R. S. McDonald, by virtue of section 118, Revised Statutes United States appointed D. F. McClure. a notary public, to officiate with Mr. Ray. Copy of notice of contestant to contestee not being produced in evidence by Mr. Ray, objection was taken to the taking of any testimony whatsoever on the grounds that the statute had not been complied with, particularly in regard to section 105, Avhich provides that the " contestant must * * * give notice, in writing, to the member whose seat he designs to contest of his intention to contest the same, and, in such notice, shall specify particularly the grounds upon which he relies in the contest." Section 121 provides that " The testimony to be taken by either party to the contest shall be confined to the proof or disproof of the facts alleged or denied in the notice and answer " ; and section 108 directs that the party desiring to take depositions shall give the opposite party notice in writing of the time and place, when and where the same will be taken, which notice shall include the names of the witnesses to be examined. Objection was taken on the grounds that the notary public acting for the contestant did not have in his possession a duly authenticated copy of the notice, and it was impossible for the contestee (acting by agent in this case), to know whether the testimony sought to be adduced was to be confined to the pleadings or not. Copies of the two following telegrains and of a memorandum were tendered as evidence by R. S. McDonald, agent of contestee. and accepted after iden- tification by Henry T. Ray, the notary public. Fort Gibson, Alaska, November 1, 1916. Commanding General, San Francisco, Cal.: United States attorney this district is of the opinion and has so expressed In writing that enlisted men serving in Alaska for over one year are entitled WICKEESHAM VS. SULZER. * 173 to vote at coming election ; request instructions at once and interpretation of permanent domicile, paragraph 1860, R. S. U. S. McIntyee. A true copy. S. B. McIntyee, Captain, Fourteenth Infantry. San Feancisco, November 6, 1916. C. O. Gibbon : Your telegram November 1st re enlisted men voting, presents abstract ques- tion ; no general discussion can be given ; each case must be decided on merits ; exercise extreme caution. Baeeette. A true copy. S. B. McIntyee, Captain, Fourteenth Infantry. Headquaetees, FoET Gibbon, Alaska, Novem,ber 6, 1917. [ Memorandum. ] Under date of October 17, 1916, the United States Attorney of the Fourth Judicial District of Alaska, has expressed the opinion that enlisted men are en- titled to vote at the coming election provided they are citizens of the United States and have been residents of Alaska for one year and have resided within the district for 30 days immediately preceding the date of election. The attention of all concerned is invited to the fact that only actual and legal residents of Alaska are entitled to vote ; that a declaration of legal resi- dence in Alaska forfeits the legal residence of the voter in his pennanent domi- cile, as no citizen can have legal residence in more than one State. Enlisted men desiring to vote will see the commanding officer in his office before so doing. S. B. McIntyee, Captain Fourteenth Infantry, Commanding. A true copy. S. B. McIntyee, Captain, Fourteenth Infantry. After stating the constitutional enactment in regard to the holding of elec- tions and law prescribed by the Legislature of the Teritory of Alaska, section 22, chapter 2.5, Laws of Alaska, 1915, Mr. McDonald made the follow- ing statement : " That while the courts have held that the notary public ap- pointed in such cases as this, if he has complied with the other formalities of the law as set forth in chapter 9 of the Revised Statutes of the United States, has an undoubted right to examine witnesses and inspect papers ; they are also explicit to the effect that his usual rights are preserved to the witness, and there appears to be no law that would take from a voter his right to main- tain the secrecy of his ballot, one of the chief aims of the Australian ballot system." Henry T. Ray, the notary public designated to take the testimony, then read section 116. chapter 9, Revised Statutes of the United States, to the witnesses, who were all present, and warned them of the consequences following a refusal to answer questions, and all declaring that they fully understood the import of the statute, the taking of testimony was then proceded with. United States of Ameeica, Territory of Alaska, Fourth Division, ss: On this 6th day of June, A. D. 1917, before me, Henry T. Ray, a notary public in and for Alaska, personally appeared — ALBERT J. HAAS, who, after being duly sworn, on oath testified as fol- lows : Q. State your name and age? — A. Albert J. Haas, age 35 years. Q. What was your business, occupation, or profession on November 7, 1916?— A. Soldier. 174 WICKEESHAM VS. SULZEE. Q. Give the place of your last enlistment in the United States Army prior to that (late. — A. Fort Gibbon, Alaska. Q. Did yon, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I don't remember how I cast my ballot. By Mr. McDonald : Q. Do you, of your own knowledge, know that a telegram was sent by Capt. Mcintyre to the commanding general, at San Francisco, on November 1, regarding the rights of soldiers to vote at the then forthcoming election?— A. Yes. Q. Is this document I am now handing you a true copy of the same? — A. It is. Q. Do you know if this second document I now hand you is a true copy of the answer that was received by Capt. Mcintyre from the general? — A. It is Q. Is this other document I now hand you a true copy of a memorandum that was subsequently, on November 6, issued to the enlisted men by Capt, Mcintyre? — A. It is. Albekt J. Haas. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for- Alaska. Commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. D. F. McClure, Notary PuMic in and for Alaska. My commission expires March 20, 1920. CHARLES E. FEDER, being first duly sworn, testified as follows : Q. State your name and age. — A. Charles E. Feder ; age, 25 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct. Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. I voted for Wickersham. No questions asked by Mr. McDonald. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Charles E. Feder. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McClxjre, Notary Public in and for Alaska. My commission expires March 20, 1920. RALPH J. McGONIGLE, being first duly sworn, testified as follows : Q. State your name and age. — A. Ralph J. McGonigle ; age, 24 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date? — A. St. Louis, Mo. Q. Did you, on November 7, 1916. vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska?— A. I decline to answer. WICKERSHAM VS. SULZER. x 175 By Mr. McDonald: Q. Are you a citizen of tlie United States, 21 years of ag'e? — A. Yes, sir. Q. Prior to tlie date of tlie last Delegate election. November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. I had. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska. 1915, "An act to provide official ballots for elections in the Territory of Alaska"? — A. I did. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. I haven't read the memorandum, but I read a telegram signed by Bunnell covering the thing. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that' you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election ; and that you have not voted at this election " ? — A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. I did. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Q. The telegram referred to, did you mean it was signed by Judge Bunnell? — A. It was a telegram posted on the bulletin board of B Company, signed " Bunnell." Ralph J. McGonigle. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McCltjre, Notary Public in and for Alaska. My commission expires March 20, 1920. CLARENCE HEFRON, being first duly sworn, testified as follows : Q. State your name and age. — A. Clarence Hefron ; age, 33 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Vancouver Barracks, Wash. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska ? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I can't recall whether I did or not. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election — November 7. 1916 — had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as re- quired by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "?— A. Yes, sir. 176 WICKEESHAM VS. SULZEE. Q. Did you read the memorandum issued by the commanding ofRcer on No- vember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly sv/ear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election"? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your I'esidence? — A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Clarence Hefeon. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henky T. Ray, Notary Public in and for Alaska. My commission expires .Tune 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McCluue, Notary Public in and for Alaska. My commission expires March 20, 1920. RALPH O. WILSON, being first duly sworn, testified as follows : Q. State your name and age. — A. Ralph O. Wilson ; age, 24 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date? — A. Fairbanks, Alaska. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer; I consider myself a legal voter. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election — November 7, 1916 — had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir.« Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska " ?— A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on No- vember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election " ? — A. Yes, sir. Q. In every manner known to you did you delilierately elect Alaska as your residence? — A. Yes, sir. Q. How long had you lived in Alaska, prior to enlistment, as a civilian? — A. Since 1911. WICKEESHAM VS. SULZEE. . 177 Q. Were you a citizen of the United States prior to enlistment? — A. Yes, sir. Ralph O. Wil.son. Subscribed and sworn to before me tins 6th day of June, 1917. [seal.] Henky T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. LOUIS G. SELK, being first duly sworn, testified as follows : Q. State your name and age. — A. Louis G. Selk, age 36 years. Q. What was your business, occupation, or profession on November 7, 1916?— A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Lawton, Wash. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congi-ess from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. I decline to answer, unless there is authority to compel me to. By Mr. McDonald: Q. xlre you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. • Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration books at the polling place before voting, the same having printed on its first page the qualifications of a voter, as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide ofiicial ballots for elections in the Territory of Alaska"? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlist- ment or coming to Alaska? — A. I did not read but gathered as much from conversation with the commanding officer. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election " ? — A. Yes, sir. Q. In every manner known to j^ou did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Louis G. Selk. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McClube, Notary Public in and for Alaska^ My commission expires March 20, 1920. 13289—17 12 178 WICKEESHAM VS. SULZER. FREDERICK L. HUFFMAN, first being duly sworn, testified as follows : Q. State your name and age? — A. Frederick L. Huffman, age 36 years. Q. What was your business, ocxiupation, or profession on November 7, 1916?— A. Soldier.' Q. Give the place of your last enlistment in the United States Army prior to that date? — A. San Francisco, Cal. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct. Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and thei'e vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, hud you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election *> — A. I had. Q. Have you ever ofiicially been declared an idiot, insane, or convicted of an infamous crime? — A. I have not. Q. Did you sign the registration books at the polling place before voting, the same having printed on its first page the qualifications of a voter, as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide oflacial ballots for elections in the Territory of Alaska "? — A. I did. Q. Did you read the memorandum issued by the commanding oflicer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be yovu- residence and forfeited any residence you had acquired prior to enlist- ment or coming to Alaska? — A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that yoix are 21 years of age and a citizen of the United States, that you are an "actual and bona fide resident of Alaska and have been such resident during the 'entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election " ? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. I did. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation sine? coming to Alaska? — A. It has. Feedekick L. Huffman. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Henry T. Ray, Notary Public in and for Alaska. My commission expires Jvme 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. Jseal.] D- F. McClure. • ' Notary Public in and for Alaska. My commission expires March 20, 1920. MELVIN JONES, being duly sworn, testified as follows : Q. State your name and age. — A. Melvin Jones, age 24 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes sir. q'. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age?— A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. WICKERSHAM VS. SULZEE. 179 Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as re- quired by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska"? — A. I did. Q. Did you read the msmorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. I did. Q. Did yon subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alska and have been such resident during the entire year immediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election " ? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — ^A. I did. By Mr. Rat : Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Melvin Jones. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] . Henry T. Rat, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. THOMAS F. GALVIN, being first duly sworn, testified as follows : Q. State your name and age. — A. Thomas F. Galvin, age 42 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. Mr. Ray, as a citizen of the United States I hold voting as a sacred duty and I don't believe any man has a right to ask another man how he voted. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7. 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — Yes, sir. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as re- quired by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Teritrory of Alaska"? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on No- vember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be you residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that vou are 21 vears of age and a citizen of the United States ; that you are 180 WICKERSHAM VS. SULZER. an actual bona fide resident of Alaska and have been such resident during: the entire year, immediately preceding this election and have been a resident in the voting precinct for 30 days nest preceding this election, and that you have not voted at this election " ? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as- your rsidence? — A. Yes, sir. My Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — Yes, sir. Q. Has that been your occupation since coming to Alaska? — Yes, sir. Thomas F. Galvin. Subscribed and sworn to before me this 6th day of June, 1917. [SEAx] Henry T. Ray, Notary Public in and for Alaska.. My commission expires June 7, 1920. Subscriljed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McClxjke, Notary Public in and for Alaska. ^ My commission expires March 20, 1920. STEVEN BAUER being first duly sworn testified as follows : Q. State your name and age? — A. Steven Bauer, age 21 years on June 15, 1916, Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress- from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — -A. Yes, sir. Q. Have you ever been oflically declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska"? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on Novem- ber 6, 1916, in regard to the qualifications of a voter at the election and under- stand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election and that you have not voted at this election"? — A. Yes, sir. Q. In every manner known to you did you deliberately, elect Alaska as your residence? — A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. That has been your occupation since coming to Alaska? — A. Yes, sir. Steven Bauer. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of Jtine, 1917. [seal.] D. F. McClure, Notary Public in and for Alaska. My commission expires March 20, 1920. WICKEESHAM VS. SULZEE. ^ 181 CLEVELAND DOUGLAS being first duly sworn testified as follows : Q. State your name and age? — A. Cleveland Douglas, age 22 years. Q. What was your business, occupation, or profession on November 7, 1916?^ A. Soldier. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes. sir. Q. Prior to the date of the last Delegate election. November, 7. 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever been offically declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. ., Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required l)y section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the territory of Alaska "? — A. Y'es, sir. Q. Did you read the memorandum issued by the commanding officer on Novem- ber 6, 1916, in regard to the qualifications of a voter at the election and under- stand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes. sir. Q. Did you subscribe to the oath required in case of challenge presented you l)y the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election"? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Cleveland Douglas. Subscribed and sworn to before me this 6th day of .Tune, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McClure, Notary Public in and for Alaska. My commission expires March 20, 1920. MICHAEL SULLIVAN, being first duly sworn, testified as follows : Q. State your name and age. — A. Michael Sullivan ; age, 37 years. Q. What was your business occupation or profession on November 7, 1916?— A. Soldier. Q. Did you on November 7, 1916, vote in Fort Gibbon Precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for delegate to Congress from Alaska? — A. Yes, sir. By Mr. McDonald : Q. Are you a citizen of the United States, 21 years of age?— A. Yes, sir. Q. Prior to the date of the last delegate election, November 7, 1916, had you lived in the Territory of. Alaska one year, and in the fourth di^'ision for 30 days innnediately preceding that election? — A. Yes, sir. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime ?^ — A. No, sir. 182 WICKEESHAM VS. SULZEK. Q. Did you sign tlie registration book at tlie polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska"? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on No- vember 6, 1916, in regard to qualifications of a voter at the election and under- stand that by casting a vote at the election you declared Alaska to be your residence, and forfeited any residence you had acquired prior to enlistment or coming to Alaska?— A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election, and liave been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election " ? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Michael Sullivan. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska, My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McClure, Notary Public in and for Alanka. My commission expires March 20, 1920. DANIEL DOHERTY, being first duly sworn, testified as follows : Q. State your name and age. — A. Daniel Doherty ; age, 39 years. Q. What was your business occupation or profession on November 7, 1916? — A. Soldier. Q. Did you on November 7, 1916. vote in Fort Gibbon Precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska ?^A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. Yes, sir. By Mr. McDonald : Q. Are you a citizen of the United States, 21 years of age? — A. I'es, sir. Q. Prior to the date of the last delegate election. November 7, 1916. had you lived in the Territory of Alaska one year, and in the fourth division for 30 days, immediately preceding that election? — A. Yes, sir. Q. Have you ever l)een officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "V — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on No- vember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. l"es, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " Y"ou do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska, and have been such resident during the entire year immediately preceding this election, and have been a resident in the voting precinct for 30 days next preceding this election, and that yon have not voted at this election"? — A. Yes, sir. WICKEESHAM VS. SULZEE, • 183 Q. In evex'y manner known to yon did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Daniel Doherty. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaslca. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June. 1917. [seal.] D. F. McClure, Notary Puhlic in and for Alaska. My, commission expires March 20, 1920. t ,■■ ■ ■ JOHN D. McNEELY, being first duly sworn, testified as follows: Q. State your name and age. — A. John D. McNeely, age 29 yeai's. Q. What was vour business, occupation, or profession on NoA^ember 7, 1916? — ■ A. Soldier. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you, then and there, vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I did, sir. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. I am, sir. Q. Prior to the date of the last delegate election, November 7, 1916, had you lived in the territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. HaA'e you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on Its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, " An act to provide official ballots for elections in the Territory of Alaska "? — A. I did. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska ? — A. I did, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election"? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residences — A. I did. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. John D. McNeely. Subscribed and sworn to befoi-e me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaslca. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McClure, Notary Public in and for Alaska. My commission expires March 20, 1920. 184 WICKERSHAM VS. SULZER. • LESTER B. Le GIER, being first duly s\Yorn, testified as follows : Q. State your name and age. — A. Lester B. Le Gier, age 25 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you, then and there, vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. I had. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, " An act to provide ofiicial ballots for elections in the Territory of Alaska"? — A. I did. Q. Did you read the memorandum issued by the commanding officer on Novem- ber 6, 1916, in regard to the qualifications of a voter at the election and under- stand that by casting a vote at the election you declared Alaska to be your resi- dence and forfeited any residence you had acquired prior to enlistment or coming to Alaska?— A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as folloM^s : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year inamediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election " ? — A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. I have. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation since coming to Alaska? — A. It has. Lestee B. Le Gier. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and swom to before me this 6th day of June, 1917. [seal.] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. SIDNEY BRIDGEWATER, being first duly sworn, testified as follows : Q. State your name and age.— A. Sidney Bridgewater, age 27 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Gibbon, Alaska. Q. Did you on November 7, 1916. vote in Fort Gibbon precinct. Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately precetling that election? — A. Yes, sir. WICKEESHAM VS. SULZER. 185 Q. Have you exer officially been declarecl an idiot, insane, or convicted of .•an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of said chapter 25 of the Laws of Alaska, 1915, " An act to pro- vide official ballots for elections in the Territory of Alaska?" — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on No- vember 6, 1916, in regard to tlie qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this flection and have been a resident in this voting precinct for 30 days next preceding this election ; and that you have not voted at this election? " — A. I did. Q. In every manner known to you. did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier ?^A. Yes, sir. Q. Has that beeu your occupation since first coming to Alaska? — A. Yes, sir. By Mr. McDonald: Q. How long had you beeu in Alaska? — A. Since July, 1914. Sidney Beidgewater. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary PuhJlc in and for Alaska. My commission expires June 7. 1920. Subscribed and sworn to before me this 6th day of June, 1917 : [SEAL.] D. F. McGlure, Notary Public in and for Alaska. My commission expires March 20, 1920. WILLIAM E. WOOD, first being duly sworn, testified as follows : Q. State your name and age. — A. William E. Wood, 37 years of age. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date? — A. Fort Lawton, Washington. Q. Did you on November 7, 1916. vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. 1 did. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I don't consider that a proper question, Mr. Ray. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. Yes. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as re- quired by section 22 of chapter 25 of the Laws of Alaska, 1915. " An act to provide official ballots for elections in the Territory of Alaska "? — A. Yes. Q. Did you read the memorandum issued by the commanding officer on No- A'ember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlist- ment or coming to Alaska? — A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which reads as follows : " You do solemnly swear that 186 WICKEESHAM VS. SULZEE. you are 21 years of age :mcl a citizen of the Uuited States, that you are an actual and bona fide resident of Alaslta and have been such resident during the entire year immediately preceding tliis election, and have been a resident in this voting precinct for 30 days next preceding this election, and that you liave not voted at this election? — A. I did. Q. In every manner known to you, did you deliberately elect Alaska as your residence? — A. I did. By Mr. Ray: Q. Did on come to Alaska in the service as a soldier? — A. Yes, sir; tlie last time. Q. Has that been your occupation since coming to Alaska? — A. Yes. Q. Did you reside in Alaska previous to your last enlistment? — A. Yes; for six years. William E. Wood. Subscribed and sworn to before me this 6th day of .June, 1917. [seal.] Henry T. Ray, Notary PuhUe in and for Alaska. My commission expires .Tune 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. .McCluke, Notary Public in and for Alaska. My commission expires March 20, 1920. HENRY F. CLARK, being first duly sworn, testified as follows : Q. State your name and age. — A. Henry F. Clark; age, 24 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Logan, Colo. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer that question. By Mr. McDonald: Q. Are you a citizen of the United States. 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days inunediately preceding tbat election? — A. Yes, sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign tbe registration book at tbe polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 2.5 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territorj' of Alaska?" — A. Yes, sir. Q. Did you read the memorandum issued by the commanding oflicer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you \by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. And that has been your occupation since coming to Alaska? — A. Yes; sir. Harry F. Clark. WICKERSHAM VS. SULZER. 187 Subscribed and sworn to before, me this 6tli day of June, 1917. [seal.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7. 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McClube, Notary Public in and for Alaska. i\Iy commission expires March 20, 1920. JOSEPH GRABOUSKI. being first duly sworn, testifed as follows : Q. State your name and age. — A. Joseph Grabouslii ; age, 23 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Columbus Barracks, Ohio. Q. Did you on November 7, 1916. vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer that question. By Mr. McDonald: Q. Are you a citizen of the United States. 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 2.5 of the laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska?" — A. Yes, sir. Q. Did 3'ou read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, .sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election? " — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. Yes. sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Joseph Grabouski. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and. for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McClure, Notary Public in and for Alaska. My commission expires March 20, 1920. JOSEPH BARTON, being first duly sworn, testified as follows : Q. State your name and age. — A. Joseph Barton, age 32 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. 188 - WICKERSHAM VS. SULZEK. Q. Give the place of your last enlistment in the United States Army prior to that date. — ^A. Jefferson Barracks. Mo. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — ^A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I don't remember. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7. 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime ?^ — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on No- vember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election "? — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. Yes. sir. Q. That has been your occupation since you have been in Alaska? — A. Yes, sir. Joseph Barton. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McClure, Notary Public in and for Alaska. My commission expires March 20, 1920. W, J. SHANNON, first being duly sworn, testified as follows: Q. State your name and age. — A. W. J. Shannon, age 26 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — ^A. Jackson Barracks, La. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and there vote for Cliarles A. Sulzer for Delegate to Con- gress from Alaska? — A. I object to that question for the reason that it is irrelevant and does not reveal whether my vote was legal or not. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. I had. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No. WICKERSHAM VS. SULZER. 189 Q. Did you sign tlie registration booli at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "? — A. I did. Q. Did you read the memorandum issued by the conuuanding officer on No- vember 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. I read the memorandum of the commanding officer and also talked to the commanding officer on the subject. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election? — A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. I did. By Mr. Ray: Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation since coming to Alaska ? — A. No. Q. What other occupation did you have? — A. Since December 17, 1916, I have been post blacksmith at Fort Gibbon as a civilian employee. W. J. Shannon. Subscribed and sworn to befoi-e me this 6th day of June, 1917. [SEAL.] Heney T. Ray, Notary Pudlic in and for Alaska,. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McClure, Notary Public in and for Alaska. My commission expires March 20, 1920. JOHN H. DAVIS, first being duly sworn, testified as follows : Q. State your name and age. — A. John H. Davis ; age, 28 years. Q. What was your business, occupation, or profession on November 7, 1916?— A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Logan, Colo. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and there 'vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer. By Mr. McDonald : Q. Are you a citizen of the United States, 21 years of age? — A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at-the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska"? — A. I did. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote vA the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlist- ment or coming to Alaska? — A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an 190 WICKEHSHAM VS. SULZER. actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election "? — -A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier ? — A. Yes, sir ; I did. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. John H. Davis. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL] Henry T. Ray, Notary Public In and for Alaska. My commission expires June 7, 1920. Subscribed and sworn lo before me this 6th day of June, 1917. [SEAL.] D. F. McCluke, Notary Public in and for Alaska. My commission expires March 20, 1920. GEORGE W. PENNINGTON, being first duly sworn, testified as follows : Q. State your name and age. — A. George W. Pennington ; age, 23 years. Q. What 'was vour business, occupation, or profession on November 7, 1916?— A. Soldier.' Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and thex-e vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer. By Mr. McDonald : Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7. 1916, had yon lived in the Territory of Alaska one year, and in the foiirth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No. Q. Did you sign the registration book ijt the polling place before voting, the same having printed on Its first page the qualifications of ,a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915. "An act to provide official ballots for elections in the Territory of Alaska "? — A. I did. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlist- ment or coming to Alaska?— A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election .iudges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election"? — A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has "that been your occupation since coming to Alaska ? — A. Yes, sir. Geobge W. Pennington. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Heney T. Ray, Notary Public in and for Alaska. My connuission expires June 7, 1920. WICKEKSHAM VS. SULZER. 191 % Subscribed and sworn to before me this 6tli day of June, 1917. [SEAL.] D. P. McCltjee, Notary Public in and for Alaska. My commission expires Marcli 20. 1920. NATHAN C. HATFIELD, being first duly sworn, testified as follows : Q. State your name and age. — A. Nathan C. Hatfield, age 21 years on October 24, 1916. Q. What ^\■as your business occupation or profession on November 7, 1916? — ■ A. Soldier. Q. Did you on November 7, 1916. vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska ? — A. I did. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. I had. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 2.5 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska " ? — A. I did. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election and understand that by casting a vote at the election you declared Alaska to be. your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in the voting precinct for 30 days next preceding this election, and that you have not voted at this election? " — A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. I did. By Mr. Ray: ^ Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. This has been your occupation since coming to Alaska? — A. Yes, sir. Nathan C. Hatfield. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7. 1920. Subscribed and sworn to before me this 6th day of June. 1917. [seal.] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. BASIL FITZWILLIAMS, being first duly sworn, testified as follows: Q. State your name and age. — A. Basil Fitzwilliams ; age 31 years. Q. What was your business, occupation, or profession on November 7. 1916? — • A. Soldier. Q. Give the place of your last enlistment -in the United States Army prior to that date. — A. Fort Leavenworth, Kans. Q. Did you on November 7, 1916. vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Tes, sir. 192 wickeesh;am vs. sulzek. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. Yes, sir. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age ? — A. Yes, sir. Q. Prior to the date of the last Delegate election November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days, immediately preceding that election? — A. Yes, sir. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualififications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on November 6 in regard to the qualifications of a voter at the election and under- stand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska, and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election?" — A. Yes, sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Do you expect to remain here indefinitely? — A. Yes, sir. Basil Fitzwilliams. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Hekry T. Ray, 'Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McClure, Notary Puhlic in and for Alaska. My commission expires March 20, 1920. ORVEL JONES, being first duly sworn, testified as follows : Q. State your name and age. — A. Orvel Jones ; age, 29 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date.— A. Fort Wright, Wash. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. No, sir. By Mr. McDonald : Q. Are you a citizen of the United States, 21 years of age?— A. Yes, sir. Q. Prior to the date of the last delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. Yes. sir. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter, as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska?"— A. Yes, sir. WICKERSHAM VS. SULZER. ' 193 Q. Did you read the memoraudum issued by the commanding officer on No- vember 6, 1916, in regard to tlie qualifications of a voter at the election, and understand that by casting a vote at the election you declared Alaska to be your residence, and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. Yes. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, Avhich read as follows: "You do solemnly swear that you are 21 years of age and a citizen of the United States, that you are an actual and bona fide resident of Alaska, and have been such resident during the entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election? " — A. Yes. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — ^A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Oka^l Jones. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Henry T. Ra.y, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal,] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. SILAS HEWITT, being first duly sworn, testified as follows : Q. State your name and age.^ — A. Silas Hewitt. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Snelling, Minn. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct. Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — ^A. I won't say. By Mr. McDonald : , Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 days immediately preceding that election? — A. Yes, sir. Q. Have you ever oflicially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter, as required by section 22 of chapter 25 of the Laws of AJaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska? " — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election, and understand that by casting a vote at the election you declared Alaska to be your residence, and forfeited any residence you had acquired prior to enlistment or coming to Alaska? — A. It was read off to me ; I didn't read it. Q. Did you subscribe to the oath required in case of challenge presented you by the election .ludges, which read as f ollows : . " Yovi do solemnly swear that you are 21 years of age, and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next precedng this election, and that you have not voted in this election?" — ^A. Yes, sir. Q. In every manner known to you. did you deliberately elect Alaska as your residence? — A. While I am in Alaska. 13289—17 13 194 WICKEESHAM VS. SULZEE. My Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since coming to Alaska? — A. Yes, sir. Q. Do you expect to remain in Alaska when you are out of the service? — A. No, sir. Silas *Hewitt. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McClure, Notary Puhlic in and for Alaska. My commission expires March 20, 1920. United States of Ameeica, Territory of Alaska, Fourth Division, ss: On this 6th day of June, A. D. 1917, before me, Henry T. Ray, a notary public in and for Alaska, personally appeared. — J. DRURY, who, after being duly sworn on oath, testified as follows: Q. State your name and age. — A. Joseph Drury, age 29 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date? — A. Jefferson Barracks, Mo. Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. Yes, sir. By Mr. McDonald: Q. You are a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Had you lived in the Territory of Alaska 1 year prior to November 7, 1916, and in the fourth division 30 days immediately preceding that date? — A. Yes, sir. Q. Had you ever been officially decla-red an idiot, insane, or convicted of an infamous crime? — -A. No, sir. Q. Did you sign the registration book before voting? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge? — A. Yes, sir. Q. Did you in every fnanner known to you deliberately elect Alaska as your residence? — A. Yes, sir. By Mr. Ray: Q. When did vou elect Alaska as your residence? — A. When I came to Alaska in 1914. Q. You came to Alaska as a soldier? — A. Yes, sir. Joseph Dexjey. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Heney T. Ray, Notary Public in and for Alaska. Commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. HUGH T. PHILLIPS, being duly sworn, testified as follows : Q. State your name and age.— A. Hugh T. Phillips, age 27 years. Q. What was your business, occupation, or profession on November 7, 1916?— A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Jefferson Barracks, Mo. WICKERSHAM VS. SULZEE. 195 Q. Did you, on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election tlien and tliere held for Delegate to Congress from Alaska? — A. Yes. sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska ? — A. I did ; yes, sir. By Mr. McDonald : Q. Are you a citizen of the United States. 21 years of age? — A. Yes. sir. Q. Prior to the day of the last Delegate election on November 7. 1916. had you lived in the Territory of Alaska for 1 year, and 'in the fourth division for 30 day;3 immediately preceding said election? — A. Yes, sir. Q. Have you ever been officially declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska of 1915, "An act to provide official ballots for elections in the Territory of Alaska?" — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on November 6 in regard to the qualifications of a voter at the election, and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence j'ou had acquired prior to enlisting or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election, and that you have not voted at this election?" — A. Yes, sir. Q. In every manner known to you, did you deliberately elect Alaska as your residence? — ^A. Yes, sir. By Mr. Ray: Q. Did you come to Alaska as a soldier? — A. Yes, sir. Hugh T. Phillips. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McOluee, Notary Public in and for Alaska. My commission expires March 20, 1920. DANIEL B. ALLEN, being duly sworn, testified as follows : Q. State your name and age. — A. Daniel B. Allen ; age, 33 years. Q. What was vour business, occupation, or profession on November 7, 1916? — A. Soldier. > Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Gibbon, Alaska. Q. Did you on November 7. 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. Yes, sir. By Mr. McDonald: Q. Had you prior to November 7, 1916, lived in the Territory of Alaska for one year and in the foiu-th division 30 days immediately preceding that date? — A. Yes, sir. Q. Have you ever been officially declared insane, an idiot, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polls before voting? — A. I pre- sume so ; I am not sure. Q. Did you read the memorandum issued by the commanding officer on Novem- ber 6 in regard to the qualifications of a voter in Alaska, and did you under- stand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlisting or coming to Alaska? — A.' Yes, sir. 196 WICKERSHAM VS. SULZEE. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next preceding this election ; and that you have- not voted at this election " ? — A. Yes, sir. By Mr. Ray : Q. Did you come to Alaska as an enlisted man? — A. Yes, sir. Daniel B. Allen. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] Henry T. Ray, Notary Public in and for Alaska.. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SEAL.] D. F. McCluke, Notary Public in and for Alaska. My commission expires March 20, 1920. JOHN O. SHERLOCK, first being duly sworn, testified as follows : Q. State your name and age. — A. John O. Sherlock ; age, 34 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date. — A. Fort Sam Houston, Tex. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. I did. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Congress from Alaska? — A. I decline to answer. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. I am. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year and in the fourth division for 30 days immediately preceding that election? — A. Yes. Q. Have you ever officially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "? — A. I did. Q. Did you read the memorandum issued by the commanding officer on Novem- ber 6, 1916, in regard to the qualifications of a voter at the election and under- stand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you^had acquired prior to enlistment or coming to Alaska? — A. I did. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next preceding this election ; and that you have not voted at this election "?— A. I did. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. I did. By Mr. Ray : Q. Did you come to Alaska in the service as a soldier? — A. I did. Q. Has that been your occupation since coming to Alaska? — A. Yes. By Mr. McDonald: Q. Have you voted previously at an election in Alaska? — A. I voted in 1908 and 1912 at Valdez. John O. Sherlock. WICKEESHAM VS. SULZEE. 197 Subscribed and sworn to befoi'e me this 6th day of June, 1917. [seal.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [SE.\L.] D. F. McCluee, Notary Public in and for Alaska. My commission expires March 20, 1920. EDWARD J. TOLAND, being first duly sworn, testified as follows : Q. State your name and age. — A. Edward J. Toland ; age. 36 years. Q. What was your business, occupation, or profession on November 7, 1916? — A. Soldier. Q. Give the place of your last enlistment in the United States Army prior to that date? — A. Fort St. Michael, Alaska. Q. Did you on November 7, 1916, vote in Fort Gibbon precinct, Alaska, at an election then and there held for Delegate to Congress from Alaska? — A. Yes, sir. Q. Did you then and there vote for Charles A. Sulzer for Delegate to Con- gress from Alaska? — A. I decline to answer the question until I get further counsel. By Mr. McDonald: Q. Are you a citizen of the United States, 21 years of age? — A. Yes, sir. Q. Prior to the date of the last Delegate election, November 7, 1916, had you lived in the Territory of Alaska one year, and in the fourth division for 30 liays immediately preceding that election? — A. Yes, sir. Q. Have you ever oflicially been declared an idiot, insane, or convicted of an infamous crime? — A. No, sir. Q. Did you sign the registration book at the polling place before voting, the same having printed on its first page the qualifications of a voter as required by section 22 of chapter 25 of the Laws of Alaska, 1915, "An act to provide official ballots for elections in the Territory of Alaska "? — A. Yes, sir. Q. Did you read the memorandum issued by the commanding officer on November 6, 1916, in regard to the qualifications of a voter at the election, and understand that by casting a vote at the election you declared Alaska to be your residence and forfeited any residence you had acquired prior to enlist- ment or coming to Alaska? — A. Yes, sir. Q. Did you subscribe to the oath required in case of challenge presented you by the election judges, which read as follows : " You do solemnly swear that you are 21 years of age and a citizen of the United States ; that you are an actual and bona fide resident of Alaska and have been such resident during the entire year immediately preceding this election and have been a resident in this voting precinct for 30 days next preceding this election ; and that you liave not voted at this election " ? — A. Yes. sir. Q. In every manner known to you did you deliberately elect Alaska as your residence? — A. Yes, sir. Q. How long have you been in Alaska? — A. Since June 16, 1913. Q. Did you come to Alaska in the service as a soldier? — A. Yes, sir. Q. Has that been your occupation since first coming to Alaska? — A. Yes, sir. EdWAED J. TOLAND. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] Henry T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Subscribed and sworn to before me this 6th day of June, 1917. [seal.] D. F. McCuee, Notary Public in and for Alaska. My commission expires March 20, 1920. United States of Ameeica, Territory of Alaska, Fourth Division, ss: I hereby certify that the foregoing thirty-five (35) sheets of typevpritten anatter is composed of the original subpoena, all pi'oceedings had, and all testi- 198 WICKEESHAM VS. SULZER. mony taken before me at the public schoolbouse in the town of Tanana. fourth division, Territory of Alaska, on this 6th clay of June, A. D. 1917, in the matter of the contested election of Charles A. Sulzer as Delegate to' Congress from the Territory of, Alaska, James Wickersham, contestant, and that said testi- mony was so taken in behalf of said James Wickersham. contestant aforesaid. Witness my hand and notarial seal at Tanana, Alaska, this 6th day of June, 1917. [SEAL.] Heney T. Ray, Notary Public in and for Alaska. My commission expires June 7, 1920. Witness my hand and notarial seal at Tanana, Alaska, this 6th day of June, 1917. [seal.] D. F. McCuee, Notary Public in and for Alaska. My commission expires March 20, 1920. NOTICE OF TAKING DEPOSITIONS OF SOLDIERS NOW AT TORT GIBBON AND FAIRBANKS, ALASKA. To Charles A. Sulzer, contestee in the above proceeding: You are hereby notified that the contestant, James Wickersham, is desirous of obtaining the testhnony of the following-named persons in the foregoing contest and will apply to Henry T. Ray, Esq., a notary public in and for the Territory of Alaska, residing at Fairbanks, Alaska, for a subpoena to issue to each of said following named witnesses, and will take the testimony of each of said witnesses at the town of Tanana, Alaska, adjoining Fort Gibbon Post, at the public-school building there, beginning at the hour of 10 o'clock a. m. iu the forenoon on Tuesday, June 6, 1917, and from day to day thereafter until the taking of said testimony is completed ; said testimony will be taken before said Henry T. Ray, notary public, and the following named persons who are now in garrison at said Fort Gibbon, Alaska, will be subpoenaed and their evidence taken on said examination before said officer 'at said time and place hereinabove mentioned. The names of the witnesses are Charles E. Feder, Nathan C. Hatfield, Hugh T. Phillips, Joseph Grabowski, Thomas F. Galvin, Daniel Doherty, William E. Wood, Daniel B. Allen, John D. McNeeley, Orvel Jones, Louis G. Selk, Harry F. Clark, Edward J. Toland, John C. Sherlock, Sidney Bridgewater. Joseph Drury, Steven Bauer, Michael Sullivan, Cleveland Douglas, John H. Davis, Silas Hewitt, Jasper L. Moser, Albert J. Haas, Willard J. Shannon, Walter H. Dehas, George W. Pennington, Ralph J. McGonigle, Frederick L. Huffman, Lester B. LeGier, Basil Fitzwilliams, Ralph C. Wilson. Joseph Barton, Melvin Jones, each of said persons above named being an enlisted man in the United States Army on November 7. 1916, the date of the last general election in Alaska for the election of a Delegate to Congress from said Territory, and each of said persons having voted in said Fort Gibbon precinct, after having been duly challenged and having made an oath before the election officers of said election to establish his qualifications therein as an elector. And you are further notified that this contestant will also take the evidence in this cause before said Henry T. Ray, notary public, aforesaid, at the city hall in the town of Fairbanks, Alaska, on Tuesday, June 12, 1917, beginning at the hour of 10 o'clock in the forenoon of said day and continuing from day to day until the same is completed, of each enlisted man in the United States Army and in the Signal Corps who was on November 7. 1916, stationed in Fairbanks, Alaska, and who voted in said precinct on said November 7. 1916, at said election ; that the names of said men, except one Coleman, are unknown to contestant, but they do not exceed 10 in number, and were at that time en- listed men in the said United States Army, stationed in the town of Fairbanks, aforesaid. Please take notice and have your representative, agent, or attorney present at said times and places. James Wickersham. Contestant. W^ashington, D. C, Ma.y 25, 1917. Washington, D. C, May 25, 1017. On this 25th day of May, 1917. I personally delivered to Charles A. Sulzer, the within named contestee, at his office in the House Office Building. Wash- WICKEKSHAM VS. SULZEK. ' 199 ington, D. C, a full, true, and correct copy of the within notice of taking testimony. In witness whereof I have set my hand and notarial seal hereunto on the date hereinabove written. [seal.] D. B. Mm L. Notary Ptiblic in and for the District of ColumMa. NOTICE or TAKING DEPOSITIONS. 2"o Cliarles A. Snlzer, contestee in the above-entitled proceeding : You are hereby notified that the depositions of W. B. Ballou, residence Seattle, Wash. ; George Dreibelbis, residence Seattle, Wash. ; .James M. Lathrop, residence Seattle, Wash. ; Thomas A. McGowan, residence Fairbanks, Alaska ; and James Wickersham, residence Fairbanks, Alaska, but all now in Seattle, Wash., and eacii of them, will be taken before Mr. Dwight D. Hartman, a notary public in and for the State of Washington, at his office at 306 Burke Building, in the city of Seattle, Wash., at the hour of 10 o'clock a. m. on the 6th day of August, 1917, to be read in evidence in the above entitled proceeding on behalf of said James Wickersham, contestant, and that the taking of said depositions will be continued from day to day thereafter, and over Sundays and other holidays, if any, until the taking of the same shall have been completed. You are requested to have your attorney or agent present to cross-examine said witnesses. Dated this 18th day of July, A. D. 1917. James Wickeksham. Contestant. PROOF OF SEBVICE. United States of America, District of Columbia, ss: GEORGE A. JEFFERY, being duly sworn, deposes and says: That he is a male citizen of the United States, over the age of 21 years, and not a party to the foregoing contest ; that on the 23d day of July, 1917, he personally served a true copy of the within and foregoing notice of taking depositions upon Charles A. Sulzer, personally, at Washington, D. C, by delivering said true copy thereof to the said Sulzer, personally, on said day. George A. .Jeffery. Subscribed and sworn to before me this 24th day of July, 1917. [seal.] M. W. Pickering, Notary Public in and for the District of Columbia. Commission expires September 19, 1919, subpoenas. The House of Representatives, Sixty-fifth Congress of the United States, greeting: To James M. Lathrop, Seattle, Wash. You are hereby commanded, by authority of the United States Revised Statutes, section 110, to be and appear at Room 306, Burke Building, Seattle, Wash., in the county of King, before Dwight D. Hartman. a notary public in and for the State of Washington, whose office is at said place, at 10 o'clock in the forenoon of the 6th day of August, A. D. 1917, then and there to testify as a w^itness on behalf of the above-named contestant in a certain contested election case pending before the United States House of Representatives, wherein James Wickersham is contestant and Charles A. Sulzer is contestee, and to remain in attendance before me until discharged, and herein fail not at your peril. Witness my hand and notarial seal this 23d day of July, 1917. [seal.] Dwight D. Hartman, Notary Public in and for the State of Washington, residing at Seattle. My commission expires on the 28th day of January, 1919. 200 WICKERSHAM VS. SULZEE. The House of Representatives, Sixty-fifth, Congress of the United States, Oreeting: To W. B. Ballou, Seattle, Wash. : You are hereby commanded, by authority of the United States Revised Stat- utes, section 110, to be and appear at Room 306, Burke Building, Seattle, Wash., in the county of King, before Dwight D. Hartman, a notary public in and for the State of Washington, whose office is at said place, at 10 o'clock in the forenoon of the 6th day of August. A. D. 1917, then and there to testify as a witness on behalf of the above-named contestant in a certain contested- election case pending before the United States House of Representatives, wherein James Wickersham is contestant and Charles A. Sulzer is contestee, and to remain in attendance before me until discharged ,and herein fail not at your peril. Witness my hand and notarial seal this 23d day of July, 1917. [sEAi.] Dwight D. Haktman, Notary Puhlic in and for the State of Washington, residing at Seattle. My commission expires on the 28th day of January, 1919. The House of Representatives, Sixty-fifth Congress of the United States, Greeting: To George Deeikelbis, Seattle, Wash. : You are hereby commanded, by authority of the United States Revised Stat- utes, section 110, to be and appear at Room 306, Burke Building, Seattle, Wash., in the county of King, before Dwight D. Hartman, a notary public in and for the State of Washington, whose office is at said place, at 10 o'clock in the forenoon of the 6th day of August, A. D. 1917, then and there to testify as a witness on behalf of the above-named contestant in a certain contested- election case pending before the United States House of Representatives, wherein James Wickersham is contestant and Charles A. Sulzer is contestee, and to remain in attendance before me until discharged, and herein fail not at your peril. Witness my hand and notarial seal this 23d day of July, 1917. [seal.] Dwight D. Haetman, Notary PuUic in and for the State of Washington, residing at Seattle. Notary Public in and for the State of Washington, residing at Seattle. My commission expires on the 28th day of January, 1919. DEPOSITIONS. Be it remembered that heretofore and on, to wit. the 6th day of August, 1917, in pursuance of the annexed and foregoing notice, before the under- signed, Dwight D. Hartman, a notary public in and for the State of Wash- ington, at his office at 306 Burke Building, in the city of Seattle, Wash., beginning at the hour of 10 o'clock a. m. on said day, appeared James M. Lathrop, W. B. Ballou, George Dreibelbis, and James Wickersham, the wit- nesses named in said notice; the contestant being present in person, and the contestee being represented by Robert M. Jones, Esq., his attorney and counsel ; whereupon the following proceedings were had and done, to wit: JAMES M. LATHROP was duly sworn to tell the truth, the whole truth, and nothing but the truth, and testified as follows : Direct examination by Mr. Wickersham : Q. Mr. Lathrop. how old are you? — A. Fifty-seven years old. Q. What is your business? — A. My business is merchant and dock owner in Valdez, Alaska. Q. How long have you resided in Alaska?— A. A little less than 20 years. Q. You were formerly deputy United States marshal up there?— A. Yes, sir. Q. But in recent years you have been engaged in private business?— A. Yes, sir. Q. Do you know Mr. W. B. Ballou and Mr. George Dreibelbis? WICKEESHAM VS. SULZER. 201 Mr. Jones. On behalf of the contestee, Mr. Sulzer. I wish to object to the taking of any testimony from this witness, upon the ground and for the reason that he is not a resident of this district but is a resident of some other location. May I ask one other question to supplement that objection? Mr. WiCKEESHAM. Certainly. By Mr. Jones : Q. What is your residence, Mr. Wickersham? — A. Mv residence is San Dietro ■Cal. By Mr. Wickersham : Q. Do you know Mr. W. B. Ballon and Mr. George Dreibelbis?— A. Yes, sir. Mr. Jones. May the record show that my objection continues and applies to -each and every other further question asked this witness? The Witness. I wish to state here that I appear voluntarily. That is to say, I am here Mr. Jones. But on behalf of the contestee I object to the taking of your testi- mony, just the same. By Mr. Wickersham : Q. Where is your office here in the city of Seattle, Mr. Lathrop? — A. 405 Low- man Building. Q. How long have you had an office there? — A. Four months. Q. Have you had any office in the city of Seattle prior to that time? — A. Yes, ■sir. Q. Where?— A. In the Pacific Building. Q. For how long a time did you have an office there? — A. I presume about eight months. Q. What business do you carry on here? — A. What do you keep an office for?— A. Well, so as to handle that northern business and have a place to get luail. Q. What northern business do you have reference to? — A. The Valdez busi- ness. The Valdez mercantile and dock business. Q. That is a constant business, is it not, year in and year out? — A. In certain seasons. Q. You have a dock business at Vandez? — A. Yes, sir. Q. And boats run there constantly every month?— A. Yes. I refer to seasons as when we buy goods down here. That is the only reason I should be here during a portion of the year. Q. Have you had no other business in the last year or two except the dock "business and the mercantile business? — A. No, sir. Q. You have not been engaged in the fisheries business in any way? — A. Well, I own stock in a cannery. Q. Where is the cannery?— A. At Kodiak. Q. Who is interested in that with you? Mr. Jones. I object to this on the ground that it is incompetent, irrelevant, and immaterial and not within the issues in this case, and for the further reason that it is not proper rebuttal testimony, which the contestant should be taking at this time, and not direct. Mr. WiCKEESHAM. The evidence is offered for the purpose of showing his resi- dence here in the city of Seattle and his constant connection with his business in Alaska. By Mr. Wickeesham : Q. Have you voted in the last two or three years? — ^A. Yes, sir. Q. When did you last vote in Alaska? — A. I don't remember. Q. Where do you live in Seattle when you are here? — A. I am living out on Harrison Street. Q. Whereabouts? — A. At 310 East Harrison. Q. It is a hotel? — A. No, sir; it is a furnished house. Q. Do you rent the house and live out there yourself? — A. Yes. sir. Q. How long have you lived there? — A. I got that house, I think, on the 5th of April? Q. And you have lived there ever since? — A. I have a lease of it until the 1st of November. Q. Have you a home in San Diego? — Yes, sir. Q. Who lives in that?- — A. Nobody. It is empty noAV. I leave for there In November. 202 WICKERSHAM VS. SULZER. Q. You live here part of the year and clown there part of the year?— A. Yes And ordinarily a portion of the time in Alaska. I own my home down there and other property. Q. Do you remember an occasion about the 5th or 6th dav of July of this year when Mr. Dreibelbis and Mr. Ballou were in your office?^— A. Yes. sir. Q. About what date was that? Do you remember?— A. I could not 'fix that It is within the last 30 days. Q. It was about the .5th or 6th of .July?- A. Probably. I would like to say here, in reference to my business, so that it is plain, that I have nothing- to do with the fisheries business that has an office here. You asked who is interested in that. I have no objection to telling you. Q. I didn't ask you anything about that. A. You did ask me who was inter- ested with me in that fisheries business. Q. Yes; but the question was answered, and it was satisfactory to me. — A All right. Q. Do you remember having a conversation with Mr. Ballou and Mr. Dreibel- bis on that day? — A. Yes, sir. Q. Who Avas present, besides you and them? — A. I don't remember. Q. Well, was anybody present? — A. I don't think so. Q. Did you at that time and in that place, and in the presence of Mr. Ballou and Mr. Dreibelbis, discuss with them the matter of the contested election be- tween Wickersham and Sulzer in Alaska? — A. Yes, sir. Q. To what extent? Mr. Jones. I wish to raise another objection at this time, and inasmuch as the commissioner has no authority to rule on the admissibility of this testimony, I would like to have the objection apply to all the remaining questions that maj^ be propounded to Mr. Lathrop. I object to it on the ground that it is incompetent, irrelevant, immaterial, not within the issues here, and upon the further ground that it is not proper rebuttal testimony. Q. To what extent? — A. I have several conversations. Mr. Dreibelbis is an old friend of mine from the North, and we generally discussed that and a great many other subjects. Q. Did you, at that time and place, and in their presence, say substantially : " We have just sent $500 to Juneau to fight Wickersham in his contest against Sulzer?" — A. No, sir. Q. Or anything of that kind? — A. No, sir. Q. Well, what did you say? — A. I said it was reported to me that there were election frauds at Seldovia, Kodiak, and Afognak, and that I would willingly pay $500 at any time to establish fraud in an election contest. Q. Well, was it true that you did take up any money at any time for any pur- pose in connection with those elections? — A. No, sir. You say in connection with the elections? Q. I mean in connection Avith the contest? — A. No, sir. Q. Or in connection with the election? — A. Yes, sir. Q. When? — A. I sent a subscription for myself a long time ago. Q. When? — A. Last summer sometime. Q. About September or October? Prior to the election on November 7. 1916?— A. Yes, sir. Q. To whom did you send it? — ^A. I sent it to Mr. Donahue. Q. To Mr. Thomas Jefferson Donahue, Democratic national committeeman? — A. Yes, sir. Q. At Valdez?— A. At Valdez. Q. Is he vour attorney up there? — A. Yes. sir. Q. How much did you send him?— A. I don't think that is a fair question to ask me. Still, I don't mind answering it. Tom asked me for a subscription and I sent him $100. Q. Do you know of any other money being sent to him from anybody here? — A. I sent him a small subscription from another man. Q. Who was the other man? — A. That I shall not answer, sir. Q. How much was that subscription? — A. The sum total, I think, was $300. The only reason I don't mention this man's name is that it is his business, not mine, if it was myself, I would tell you, but I am not the custodian for what he should say. Q. Is it not true, Mr. Lathrop, that you were very active in taking up sub- scriptions prior to the election last fall and sending them to Alaska for use in that election? — A. No. sir. Tom Donahue Avas doAvn here, and asked me to assist him in getting whatever money I could get. WICKEESHAM VS. SULZEE. 203 Q. You decline to tell where you got that other $200? — A. Yes, sir. To you; yes, sir. Q. YoiT are not telling it to me. You are telling it to the House of Representa- tives now. — A. Yes, sir. Q. Do you know of any other money being taken up that way? — A. Not per- sonally ; no, sir. Q. Don't you know that a great deal of other money was taken up among other men interested in the fisheries and cannery business and sent up there to Alaska in the same way ? — A. Not personally ; no, sir. Q. Do you know whether there was a large sum of money taken up in the name of the saloon element and sent up there for use, or not? — A. I know of no money being sent up there other than that to which I have referred. Q. Other than that $300?— A. Yes, sir. Q. And you say you have taken up no money since the election on November 7. 1916, for any purpose in connection with that election or with the contest? — ■ A. Not a 5-cent piece. Q. And you know of none? — -A. And I know of none, and have never dis- cussed any such point with anybody. Q. You didn't say to these gentlemen what I asked you or the substance of it? — A. No, sir. I said that I would be willing to put up $500 at any time to establish any crime that is as bad as I think a fake election business is, because I have seen too much of it. Cross examination by Mr. Jones.: Q. Mr. Lathrop, the statement that you say you made to Mr. Dreibelbis and Mr. Ballon concerning your willingness to give money for the uncovering of frauds in certain precincts in Alaska — in whose favor did you understand those frauds had beeu committed? — A. Well, I know very little about it, except what I mentioned in this conversation, that people from Kodiak told me that a lot of fraudulent votes were cast, and I will tell Judge Wickersham, to show how much interest I had in the election, that niy Kodiak people asked me at that time who I was in favor of, as a matter of fact, as I had never been interested enough to even let them know. Mr. Wickersham. You didn't have any doubt about it, did you? — A. No, to tell the truth. Judge, I didn't. By Mr. Jones : Q. Did you know of any money being collected here or elsewhere for Mr. Wickersham? — A. I never heard any money matter discussed with anybody. I have never been asked for money from any source. I have never heard any- body speak about it. I have not been in consultation with anybody about any point of the kind. Redirect examination by Mr. Wickersham : Q. What was it that Mr. Donahue told you about fraud there, Mr. Lathrop? — • A. Mr. Donahue had not told me anything about fraud. Q. You said somebody talked to you about frauds, etc. — A. In a general con- versation in the office of the Kodiak Fisheries Co. ; there were a number of people from Kodiak present. Q. When was that? — A. That was this spring. Q. Before the election? — A. No; this spring. Q. This spring after the election? — A. Yes, sir; they were in there. Q. Who was it? — A. There was Mr. Blodgett, ]\Ir. Blinn, and Mr. Clay, and in general conversation they told me that all the tribal natives were voted. I never even communicated that to anybody, except in a general conversation with these gentlemen. Q. What else did they say had been committed in the way of fraud? — A. I can't recall the conversation with half a dozen men mixed up in it. Q. Well, tell us the substance of it. — A. Well, I remember they said some- thing about some people there that used some kind of a frame, put over tickets with apertures, where they could only be put in a certain place to be voted. It didn't attract my attention so much that I remember exactly what was said. Q. That so shocked you that you subscribed $100 yourself, and got $200 more? — A. I beg your pardon. That was this spring. Those men have put up nothing, and I didn't communicate those facts to anybody else, except in a friendly conversation to these gentlemen — at least, I thought it was. Q. Was that all the fraud that those men talked to you about out there? — A. Thev mentioned Kodiak, Seldovia. and Afnogak. 204 WICKEESHAM VS. SULZEK. Q. And that these tribal natives had been voted there? — A. Yes, sir; and that there was some mechanical means used by which they voted right. Q. You know that Blodgett and Blinn and Clay have been very active out there, do you not, in partisan politics, themselves? — A. No, sir; I do not. If they had been, there would have been a change of vote. Q. Don't you know that they were witnesses out there recently? — A. No, sir. Q. And that Mr. Donahue had them examined about these matters? — A. No, sir ; and I don't think they were active. Q. As a matter of fact, they are your partners in your fisheries concern, are they not? — A. They are stockholders in the fisheries concern. Q. You are very intimately associated with them? — A. Yes, sir; but I never had any conversation with them about this matter, or never communicated with them about it before the election. That shows how little interest I had in it. Q. Yes ; but you know I got only about 7 votes out of about 200 two years ago, don't you? — A. No, sir; I do not. Q. You yourself know those natives out there, don't you? — A. I have been there. Q. You have been there? — A. Yes ; but I don't know the natives out there at all. Q. Don't you know that those natives out there are all Russians and Russian half-breeds," and that they are all intermarried? — A. I suppose they are all mixed. Q. Don't you know that Kodiak, Seldovia, and Afognak are three old Russian stations, and that the people there are intermixed and inmarried with Rus- sians? — A. I presume so. I don't know. Q. Don't you know that they all belong to the Russian Church out there, and live with the Russians, and amongst them, and are half-breeds? — A. Most of them ; yes, sir. Q. Don't you know that they live substantially like the other Russians out there do live? — A. I dont' know that. Judge. Q. Don't you know that they have Russian churches out there? — A. Yes, sir; I have heen in those towns. Q. You have been in the Russian churches there, too, haven't you? — A. I haven't been in the outlying districts at all. Q. I am talking about Kodiak, Seldovia. and Afognak. There are Russian churches in each one of those places? — A. There are in Kodiak and Seldovia. Q. Is there not a Russian church in Afnognak also? — A. I could not say as to that. Q. You could not sav for sure about that? — A. No, sir. Q. Dont' you know, as a matter of fact, that those people are all Intermixed with Russians, and are of Russian blood? — A. No; I don't know that. Q. Well, very largely, is that not true? — A. Well. I read Dalles's Alaska on those races there * Q. Dalles's Alaska was published about 40 or 50 years ago? — A. Y^es ; and some of those people were born that long ago and longer. I have never known what the Aleut race was. I have often thought I would like to ask you. Q. The Aleut race is entirely intermarried and intermixed with the Russians out there, and has been aboixt a hundred years at Seldovia, Afognak, and Kodiak? — A. I presume so. Q. How many times have you been out there? — A .1 have been twice to Kodiak, three times to Selvodia, and once to Afognak. Q. Your opinion now is that if Blodgett and Blinn and Clay had known how close the election was going to be there I would not have gotten so many votes there? ^ . , Mr. Jones. I object to that as incompetent, irrelevant, and immaterial. A. I didn't say that. Q. I understood you to say that?— A. No, sir. , ^ , ^ Q. What did vou say in that regard?— A. I did say that if Mr. Blodgett had been verv active there would have been a change of vote. I am simply stating that to show that he was not active, and that I was not active or interested in the election. That was largely in answer to your question whether I didn t have much interest in the election. I didn't have enough interest to ask Mr Blodgett about it. I don't know whether he would have repeated it or not. I have got no strings on Mr. Blodgett. WICKEESHAM VS. SULZER. * 205 Recross-examination by Mr. Jones : Q. Have you any special knowledge, Mr. Lathrop, of conditions of inter- mingling of blood in Alaska prior to the time you went there, between the Russians and natives in these precincts — Kodiak, Afognak, and Seldovia? — A. Any special knowledge? Q. Yes. — A. No, sir. Q. You have never made any study of it, have you? — A. No. Q. Do you feel competent to answer a general question as to whether or not the people In those vicinities are of mixed blood, or of what kind of blood or mixture they may be? — ^A. No, sir. Redirect examination by Mr. Wickeesham : Q. You say you have been reading Dalles's book on that subject? — A. You don't want the stenographer to put all this conversation down, do you? Q. Yes ; we want him to write it all down. A. Yes. I have read Dalles and everything else I could get on the subject. Q. You have been very much interested in the subject? — A. Yes, sir. Q. And you know thnt all the authorities say that the natives there are intermarried with the Russians? — A. Not all the authorities. As a general rule, I find that pretty nearly every book I read has different ideas, but gen- erally, I believe they say that these natives are mixed with the Russians. Q. And generally they belong to the Russian church out there, and some of their half-breeds are priests in the church, and officers in the church? You know that, don't you? — -A. No; I don't know whether they are half-breeds or not. The priest that I knew best out there — where was he? He was a French- man, I think, and he told me his business prior to being a priest was advance agent for a circus. Q. That interested you? — A. Very much. I asked him why he changed. Judge. Recross-examination by Mr. Jones : Q. Are the natives there in that country around these three precincts above referred to, connected with the Russian Church? — A. I don't know, sir. I don't know. Q. The Russian Church was there, though, years before the Americans went into that country? — A. Yes, sir. Q. It was the only church there? — A. I guess so. Q. There is no particular significance as to a man's blood, that he happens to be an adherent of some particular Christian faith? — A. No. I don't quite get that question. Q. I mean that merely because an Indian or some native in Alaska happens to be a member of the Russian Church is no evidence in itself that he is an ad- herent of or has Russian blood in him? — A. No, sir. James M. Latheop. Subscribed and sworn to before me this 8th day of August, 1917. [seal.] D wight D. Hartman, Notary Public for the State of Washington, residing at Seattle. W. B. BALLOU, called as a witness by the contestant, was duly sworn to testify the truth, the whole truth, and nothing but the truth and testified as follows : Direct examination by Mr. Wickeesham : Q. Mr. Ballon, how old are you? — A. I am 48 years old. Q. How long have you resided in Alaska? — A. About 18 j^ears. Q. Where have you resided? — A. At Rampart. Q. When did you come out? — A. Last fall. Q. Do you know Mr. Lathrop, who was just on the stand? — A. Yes, sir; I have met him once. Q. Were you in his office with Mr. Dreibelbis about the 5th or 6th of July of this year? — A. I can not say just the date, but somewhere along there— the 5th, 6th, 7th, or 8th. I forget now just the date. Q. Now, in reference to this conversation that he testified to, were you present when that conversation was had? — A. Yes, sir. Q. Did you hear Mr. Lathrop make the statement that I asked him about? — A. Well 206 WICKEESHAM VS. SULZEE. Q. Yes or no. You either did or did not hear it. — A. Yes ; I heard it. Q. I wish you would state as nearly as you can exactly what he said in I'eference to the matter that I asked him about. — A. Well, the conversation was between Mr. Lathrop and Mr. Dreibelbis, and as nearly as I can recollect it the conversation started in something this way : Mr. Dreibelbis made some remark about you being here in the city on your way to Alaska to contest this election, and George Dreibelbis said that he thought you stood a pretty good chance to beat it. and Mr. Lathrop said, " No ; he does not stand any show. We have just sent up $5(X) to attend to that matter." Mr. Jones. I move that this testimony be stricken upon the grounds that it is incompetent, irrelevant, immaterial, has reference to something that took place long after this election which is now contested in this matter, and for the further i-eason that it is not proper rebuttal testimony. May that objection con- tinue to all further questions and answers propounded to this witness? Q. Did he say anything about whom he meant by " we " have sent up $500? — A. No, sir. Q. He didn't mention any names in that connection? — A. Not that I remember. Q. Did he say to whom the money had been sent? — A. No, sir. Q. This conversation occurred the first part of July of this year 1917, about a month ago ? — A. About a month ago ; yes, sir ; not quite a month ago. Q. I wish you would state again as nearly as you can what he said about .sending this money up. — A. Well, as nearly as I can recollect he said : " We have just sent up .$.500 to attend to that matter." Q. What matter was it? — A. In regard to your contest of the election. Q. And he expressed his opposition to my efforts in the matter? — A. Yes, sir. Q. "Was he friendly to Mr. Sulzer? — A. Yes, sir. Q. And so expressed himself? — A. Yes, sir. Q. What did he say in that connection? — A. Well, he said that he didn't think that you stood any show in regard to this contest, and then the conversation went on to other matters. Q. Well, had he made any statements prior to that which showed whether or not he was friendly to me or to Mr. Sulzer that you remember of? — A. I can't recollect just what they were, but he gave me the impression that he was friendly to Mr. Sulzer. Q. He didn't say to whom this .$.500 was sent? — A. I don't think so. Q. Did he mention where it was sent? — A. No. Q. Did he say whether it was sent to Juneau or not? — ^A. No. Q. That it was just sent to Alaska? Was that the understanding? — A. That it was sent up ; sent up there. Cross-examination by Mr. Jokes : Q. Do you have any recollection that it was stated in any part t)f this con- versation" that you heard where it was sent from? — A. No; I don't think I do. There was something said in regard to taking some affidavits up there, and my impression was that it was going up where those affidavits were taken. Q. Where was that? — A. I can't remember where he said those affidavits were being taken. Q. You were not paying very much attention? — A. No; I was not paying very much attention to that. Q. You were not interested in it? — A. No, sir. Q. Did you hear any statements made about the frauds committed at Sel- dovia. Afognak, and Kodiak at the time this conversation was had? — A. No; I didn't hear anything about it then. I had heard about it before. I had heard about it from other sources. Q. You didn't hear it mentioned in that conversation, though, in the course of this conversation between Mr. Dreibelbis and Mr. Lathrop? — A. In regard to these affidavits? Q. No; in regard to frauds committed at Kodiak, Seldovia. or Afognak? — A. No : the only reference to it was that they were taking the affidavits at those places. Q. These are the places where the affidavits were taken? — A. Yes, sir. Q. That recalls those places to your mind — A. Yes, sir. Q. Are you positive in your own mind, Mr. Ballon, that the statement Mr. Lathrop just made here, that he said he would give $500 to unearth or prosecute the frauds at these places, was not the statement that he made in this conversa- tion? — A. I don't think that that was the statement that he made at that time. I am positive it was not. WICKEESHAM YS. SULZEE. \ 207 Q. What was there about the occasion to impress his exact words upon rour memory? — A. Nothing. Q. You didn't Ivuow him? — A. I was not acquainted with him before I was introduced to him in that conversation. Q. Did you vote in Alasi^a? — A. I did up until last June. Q. Did you vote there last fall? — A. No. Q. Naturally, of course, you had some interest in this election? — A. Oh, yes. Q. You were a partisan of Mr. Wickersham. the contestant here? — A. Yes, sir. Q. Do you remember any other conversations you had that day on this subject? — A. Not on this subject; no. sir. Q. What was it that impressed upon you Mr. Lathrop's exact language? — A. Well, nothing, only just the fact that he had sent such a large sum as that up there for this purpose. Q. And in this discussion reference was made to Seldovia. Kodiak, and Afog- nak? — A. But that was before he made that statement. Q. And to the frauds committed there? — A. Yes, sir. Q. Did you gather from his conversation in whose favor he thought the frauds had been committed? — A. Yes, sir. Q. In whose favor were they? — ^A. They were in favor of Mr. Wickersham. Redirect examination by Mr. Wickeesham : Q. That conversation was at the same time that you heard him make this other statement? — A. Yes, sir. W. B. BALLor. Subscribed and sworn to before me this 8th day of August, 1917. [seal.] Dwight D. Haktman, Xotary Public for the State of M'asJiington, residing at Seattle. GEORGE DREIBELBIS, called as a witness by the contestant herein, was duly sworn to testify the truth, the whole tiiith, and nothing but the truth, and testified as follows : Direct examination by Mr. WiCKESSHAii : Q. Mr. Dreibelbis, how old are you? — A. Fifty-three. Q. Where do you reside? — A. Alaska has been my residence for the last IS years. Q. You are acquainted with Mr. James IVI. Lathrop. who was just on the wit- ness stand? — ^A. I am. Mr. Jones. I interpose an objection to the taking of Mr. Dreibelbis's testimony here upon the ground that he is not a resident of this district, as required by the statute. By Mr, Wickersham : Q. How long have you known Mr. Lathi-op? — A. I have kno^^^l him since about 1905. Q. You and he were both formerly in the service of the Department of Justice in 1905? — A. He was otRce deputy at Valdez. and I was office deputy marshal at Fairbanks. Q. And you have kno^^^l him somewhat intimately ever since? — A. Oh, yes. Q. Were you in his office with Mr. Ballon on the day that Mr. Lathrop and Mr. Ballon have both mentioned, in July of this year? — ^A. I was. Q. Did you hear the conversation that was carried on there by and between Mr. Lathrop and you and Mr. Ballon? — A. Yes. Q. I wish you would state what was said in that conversation with respect to the matter of the contest between Wickersham and Sulzer over the delegateship in Alaska. Mr. JoxES. I wish to interpose an objection to this and all other questions that may be propounded to this witness upon the ground that it is incompetent, irrele- vant, immaterial, inadmissible, not within the issues in this case, and that it is not proper rebuttal testimony. A. The conversation was general, and. in fact, from my point of view, it was northern gossip, in a way. We were discussing the contest, which was of inter- est to Mr. Ballon and Mr. Lathrop and myself, and I remarked to the effect that I believed Mr. Wickersham stood a show of winning out in the contest, and Mr. Lathrop said '• not a chance." He said, '" We have just sent up $500 to cover that matter." The conversation I considered of no importance, that we were 208 WICKEKSHAM VS. SULZER. merely talking, and the exact words I could not be confident of, whether he- said " we " or " I " ; but the matter of $500 going up, of that I am just certain. Q. And that it had just gone? — ^A. Yes. Q. He did not say to whom it was being sent? — A. No. Q. But it was being sent in connection with this contest? — A. That would have to be inferred from the remark that had gone before. But later on in the conversation, after other matters had come up, Mr. Lathrop made the remark about illegal voting in Kodiak, and my inference was that the money was being sent up for legitimate purposes in reference to taking -affidavits in the contest at Kodiak. Q. But he didn't say that? — A. He didn't say it. The conversation was not connected. That is, the remarks were not connected. This was all in one con- versation, and to sort of illuminate the whole proposition, I will say this: That I think Mr. Ballon and Mr. Lathrop will both, when they come to think the matter over thoroughly, realize that the conversation really did not take place in the office, but that it took place while we were leaving the office and going over to another place, and that it took place on the street while we were on our way to the other place, but it was while we were all together. Q. It was while you were all together? — A. While we were all together; yes, sir. Cross-examination by Mr. Jones : Q. There was during this conversation, which you say took place while you were leaving Mr. Lathrop's office, and on your way to another place, and neces- sarily of short duration, some reference to the alleged frauds at Kodiak and Seldovia? — A. Yes. It was my first intimation that there was any contest on the voting in Kodiak, and it came from Mr. Lathrop. Q. And your general impression was that Mr. Lathrop, as a partisan and a friend of Mr. Sulzer. was sending or had sent money there to unearth or prosecute these frauds? — A. That was my impression. Redirect examination by Mr. Wickeesham : Q. Do you know Mr. Blodgett? — A. I met him once. Q. Do you know Mr. Blinn? — A. No, sir; I do not. Q. You know generally that they live there at Kodiak and are connected with Mr. Lathrop in the fisheries business out there? — A. Yes, sir. Q. Did he say anything about them in that connection? — A. Nothing at all. Q. Their names were not mentioned? — A. They were not mentioned. The only mention there was in reference to Kodiak was with reference to the voting of the Indians there. Q. Did he say anything about Avhere this money was to be sent, to Juneau or any place? — A. No. I am almost positive that he did not, although he might have. He simply said " We have sent $500 to take care of that matter." Q. And that had reference to the taking of these affidavits or depositions or whatever they were? — A. Without the preceding conversation, and the conver- sation following it, I could not infer that. Q. But taking it all together? — A. Taking it all together, I understood that the money was to be sent to take affidavits in connection with the illegal voting. Geo. Dreibelbis. Sul)scriV)ed and sworn to before me this 8th day of August, 1917. [seal.] Dwight D. Hartman, Notary Public for tJie State of Washington, residing at Seattle. JAMES WICKEKSHAM, the contestant herein, was duly sworn to tell the truth, the whole truth, and nothing but the truth, and testified as follows : The Witness. I returned on Saturday from Craig. Alaska, where I had been notified by Mr. Sulzer to go and attend the taking of a large number of deposi- tions of Indians and half-breeds M'ho i-eside in that precinct, and who were said in the notice to have been refused by the election officers the right to vote. I went to Craig and attended the taking of the depositions, before Mr. Winston. a notary public residing at Ketchikan. Mr. Holzheimer, an attorney from Ketchikan, and one of the United States assistant district attorneys also went on the trip from Ketchikan to Craig, and while Mr. Holzheimer did not enter his appearance in the record formally, he sat behind a Mr. Sellers and pro- l)ounded questions through Mr. Sellers to the witnesses. But two natives or In- dains mentioned in the noice to me were produced as witnesses. The others failed to appear and be sworn, although the parties there representing Mr. Sulzer WICKERSHAM VS. SULZER. % 209 had scoured the country in a small gasoline launch under the guidance of a Mr. Hibbs, Government teacher at Klawock Indian Reservation, searching for them. Mr. Hibbs is the Government school-teacher at Klawock, and has been giving a very great deal of his attention to politics, especially to making the fight against me there for Mr. Sulzer in connection with the natives at that point. The testimony with respect to that was all taken in the record made there. On my return from Craig I stopped at the Indian village of Hydaburg. The village of Hydaburg is inhabited entirely by Indians, except there are a Government school-teacher and his wife who reside there, and a Presbyterian minister by the name of Hawk, I think, also resides there. It is an Indian town, and is inhabited by Haida Indians. The Haida Indians who reside tliQre mre British Columbia Indians, and either they or their parents were born on Queen Charlottes Island, from which point they emigrate'd to Alaska within recent years. These people are all Haidas, and drove out the native Alaska Klingits from the villages on the south end of Prince of Wales Island and in that vicinity, and are now in possession pf those villages. About 35 of these Indians from Hydaburg voted at Sulzer post office in the Sulzer precinct on November 7, 1916, at the general election held for the election of a Delegate from the Terri- tory of Alaska, and each and everyone of them voted for Mr. Sulzer. I ascer- taind this fact more particularly upon inquiry as to the number of votes cast there and for whom. There were 78 votes cast at Sulzer, of which 76 were cast for Mr. Sulzer and 2 for James Wickersham. Mr. Aaron Shellhouse, a long- time resident of the town of Sulzer, was one of the two who voted for me, and i was informed of the name and residence of the other person who voted for me, who was not an Indian. I am well acquainted with the people of Kodiak, Seldovia, and Afnogak. and have given a very great deal of attention to the historj^ and character of the residents there. I was United States district judge in Alaska for eight years.. and in my official capacity I visited those places and met the people, consulted with them, and became acquainted with them. Since that time, as a candidate for Delegate, I have given much attention to the same subject, and have extended my acquaintance among them by correspondence and otherwise.- I have also given the matter of the ethnology of the people of the Pacific coast of Alaska a very great deal of attention, officially and otherwise, and especially in the case of In re Minook (2 Alaska Repts., 200), a case decided by me while I was district judge in Alaska, where I had to determine the status of t;hose people officially and with great care. Kodiak was the first Russian cai^ital of Alaska, and was settled about 1785. A Russian church was built there soon after that date, and schools were established. The Russians who came to Russian America in that time were almost invariably men, very few Russian women ever coming to Alaska. The men universally married among the Aleuts. \yith whom they lived and with whom they carried on the fur-trading and fur-gathering business. The Aleuts during more than 100 ye;irs since have almost entirely become Russianized. They all belong to the Russian Church and attend the services of that church. They were made citizens of Russian America by the ukase of the Czar in 1844, and were made citizens of the United States by the treaty of purchase of March 30, 1867. They have been permitted to vote from the date of the first Delegate election in Alaska until the last, and in the case of Minook, and in other cases of that kind, the courts, have held them to be citizens of the United States, entitled to all the rights., privileges, and immunities of citizens of the United States under the treaty. There is every diiference from an ethnological and legal standpoint between the people who reside at Kodiak, xA-fnognk, and Seldovia — that is, the Russian- ized native people who live in those villages and who voted at the last elec- tion— and the natives who voted from Hydaburg and who are said to have desired to vote from Klawock. The Indians at these two last-named places are neither members of the Russian Church nor were they intermarried with the Russians. They are generally full-blood Indians, although there are ft."e-' quently crosses between natives and white men, who seem to have resided a brief space of time in that vicinity, but who never settled there. The Hydaburg: Indians are British Columbia Indians, and the Klawocks are Klingits, but neither of them was ever guaranteed the rights of citizenship under the treaty of 1867. I asked Mr. Lathrop during his examination questions about taking up funds here in the city of Seattle to fraudulently carry the elections in Alaska for Delegate last fall, because I had been informed that large sums had been raised through moneys donated by the big transportation companies and some 13289—17 U 210 WICKERSHAM VS. SULZER. of the large fisheries companies here in the city of Seattle to control the election in Alaska against me. Last year I brought a suit for the Sampson Hardware Co. in Fairbanks, Alaska, against the Alaska transportation com- panies, including the Copper River i^ Northwestern Railroad Co.. the Alaska Steamship Co., the White Pass »fe Yukon Route, and other big transportation companies doing business in Alaska, for a reduction of freight rates, and the matter was pending during the whole summer of 1916 and up to the time of the election. These gentlemen were very largely interested in that suit and were very bitter in their denunciation of me for having brought it. Mr. .James M. Lathrop, who was just on the witness stand, was made a party to that suit and was one of the transportation interests who did all he could to defeat me in the election and who took up subscriptions for the Sulzer campaign fund in Alaska. Another fund was collected at that time by W. F. Thompson, the editor of the Fairbanks Daily News-Miner, and by Mr, Thomas A. McGowan, the attorney for the White Pass & Yukon Route, and also for the Northern Commercial Co. and the Northern Navigation Co. The firm of McGowan & Clark were general attorneys in Alaska for the Northern Navigation Co., the Northern Connnercial Co., and the White Pass & Yukon Route, corporations. Thompson and McGowan came out to San Francisco and to Seattle in the sum- mer of 1916 and took up a large collection from those who were interested in that election, and it was used in the election to secure my defeat. I have here a letter signed by Thompson, which I will introduce in the record. It is dated Fairbfjnks, Alaska, September 12, 1916, and is a printed letter. At the bottom of this letter is a communication in handwriting signed " W. F.," and addressed to Charles E. Heron, of Anchorage, Alaska, who gave me the letter. I know Thompson's handwriting and his signature, and I am satisfied beyond any doubt that this handwriting is the actual handwriting of W. P. Thompson, the editor of the Fairbanks Daily News-Miner. I offer it in evidence in this case, ask that it be attached to my deposition and made a part thereof and verified therewith, and forwarded to the House of Representatives as part of my testimony. Mr. .Jones. I wish to object to it on the ground that it is incompetent, irrele- vant, and immaterial, not the best evidence, and that there is no proof given to substantiate its authenticity or to show who wrote it or by whom it was sent, (The letter identified by the witness is hereto appended and marked "Con- testant's Exhibit A.") The Witness. This matter purports to be an appeal by Thompson to the newspapers he has bribed in Alaska to ]Mr. .Jones. I wish to enter the further objection that the letter speaks for itself, if it is properly in evidence, and, if it is not, any comment on what it contains is improper. The Witness (continuing). To support the wet side of the campaign then pending against the referendum vote in favor of prohibition, but as a matter of fact, Mr. IMcGowan, who is mentioned therein, was the Democratic candi- date for senator from the Fairbanks or fourth division in the Territory of Ahiska to the Territorial Legislature, while Thompson was notoi'iously the agent of the White Pass & Yukon Route corporations. Some time not long pre- vious to the time when this letter was written I had a conversation with Thompson at Fairbanks, in which he told me that he was then receiving from the White Pass & Yukon Railway a regular salary of $150 per month for the control of his paper, and I also knew at that time from him and from other official record sources that the Northern Commercial Co. and the Northern Navigation Co., united or one for the other, had an interest in his paper, in the ownership, or by an advance of money to him for its use, and a mortgage in return. Thompson and McGowan collected, I am informed, $10,000 on this trip outside for the purpose of supporting Mr. Sulzer and defeating me at the election, and this money was expended very largely in controlling the press in the Territory. The Ketchikan Progressive Miner editor had just previously made an applicaion to me for money, which I declined to give him, whereupon he was employed by Thompson and paid $350, and he did everything he could thereafter to support Mr. Sulzer and oppose me. The Juneau Daily Empire, of which Mr. John W. Troy is the editor, was also paid a consideration in that connection, although the paper was supporting Mr. Sulzer without the pay- ment of this money, but it was very useful in that work. Eleven newspapers in the Territory of Alaska out of, I think, 16 were paid portions of this bribe fund put up by these corporations, and every one of the 11 that stayed bought WICKEESHAM VS. SULZEE. 211 fought me to a finish and supported Mr. Sulzer. Many of these newspapers previously supported me, and undoubtedly would have continued to do so if they had not been bribed by Thompson and McGowan for the big corporations. The moneys collected by Mr. James W. Lathrop here in the city of Seattle and the money collected by Thompson and McGowan were all used for the same purpose, to wit, to promote the election of Mr. Sulzer, and very largely because of the fact that I had sought to restrain the fishing interests in Alaska and the big transportation companies from overcharging the people in freight rates. I may say that Mr. Charles E. Heron gave me the letter which I have introduced in evidence here, and which is marked "Contestant's Exhibit A," and that his paper, the Anchorage Times, supported me and refused to accept the money offered by the big corporations. There were three or four other papers in the Territory that likewise declined to receive this money, I am in- formed. When the Alaska canvassing board, consisting of the governor, the secretary of the Territory, and the collector of customs, canvassed the returns of the votes cast at the election of November 7, 1916, they declared that I had been reelected as Delegate from the Territory of Alaska over Sulzer by 31 plurality over him. Immediately Mr. Sulzer brouglit a suit in the district court at Juneau before Judge Robert E. Jennings, district judge, and Judge Jennings issued a mandamus and injunction against the canvassing board, and finally commanded and compelled the board to reject and not count the votes cast in Choggiung and Nushagak precincts, where I had majorities, and by the throwing out of which I was defeated. The ground for throwing out the re- turns from those precincts was that the election oflicers had not made a certificate showing why the Territorial form of ballot had not been used in- stead of the Congressional or written form. It was alleged that the Terri- torial form of ballot was not used, and that therefore tliere was fraud. I now offer in evidence a statement signed by the judges of tlie election in the Nusliagak precinct, which is within the Dillingham precinct in the dis- trict of Bristol Bay, Alaska, showing that the Territorial or alleged official ballots did not reach those precincts prior to the date of election. This state- ment is signed by the judges of the election, by the postmaster, and by the Government school-teacher tliere, and sets forth the facts. I ask to have it marked as an exhibit and attached to my deposition and made a part thereof. Mr. Jones. I desire to object to it on the ground that it is not the best evi- dence, that it is hearsay, that it is incompetent, irrelevant, and immaterial, and not within the issues here, and upon the further ground that it is not proper rebuttal. I wish that objection also to apply to the explanatory statement of Judge Wickersham in offering the letter in evidence. (The letter identified by the witness, dated "Dillingham, Alaska, May 5, 1917," addressed " Hon. James Wickersham, Washington, D. C," is hereto ap- pended and marked "Contestant's Exhibit B.") The Witness. I also offer in evidence a written statement signed by Adolf Osterhaus, one of the judges of the election in that precinct, in regard to the same matter, and ask to have it marked as an exhibit in the case and attached to my deposition and made a part thereof. Mr. Jones. I desire to object to its introduction on the ground that it l3 not the best evidence, that it is hearsay, that it is incompetent, irrelevant, im- material, not within the issues here, and upon the further ground that it is not proper rebuttal. (The letter identified by the witness, dated "Dillingham, Alaska, May 5 1917," addressed " Hon. James Wickersham, Washington, D. C," signed "Adolf Osterhaus," is hereto appended and marked "Contestant's Exhibit C") The Witness. On the day prior to the election at Tanana and on November 6, 1916, the date before the general election on November 7, 1916, I received a telegram from one of my friends at Tanana, Alaska, informing me that it was the intention of the Sulzer people there to vote the soldiers. I offer that tele- gram in evidence and ask that it be marked as an exhibit and made a part of my testimony and attached to my deposition. Mr. Jones. I make the same objection to this that I made to the last offer, with the added objection that this is very obviously hearsay. (The telegram identified by the witness dated "Tanana, Alaska, Nov. 5-6, 1916," addressed " Judge Wickersham, Cordova," reading, " Please wire immediately if enlisted soldiers who have been stationed here two years can vote at territorial election. They have resided on military reservation entire 212 WICKERSHAM VS. SULZER. time. Nigger in woodpile," and signed " Joseph Aniscich," is liereto appended and marked "Contestant's Exhibit D.") The Witness. After Judge Jennings had elected Mr, Sulzer to Congress, and Mr. Sulzer had gone to Washington with the certificate of election issued by Judge Jennings, and had taken his seat as a Delegate, I began this contest. As a part of the proceedings in the contest I gave Mr. Sulzer written notice in Washington of the taking of the depositions of something more than 30 soldiers enlisted in the Army of the United States, and who were stationed at Fort Gibbon, adjoining the town of Tansnia, and who voted in the Fort Gibbon pre- cinct on election day. The entire management of the election machinery in that vicinity was in the hands of Charles E. Bunnell, United States district judge of the fourth division, and who was a candidate aganist me for Delegate from Alaska in 1914, and whom I defeated. Mr. Bunnell was thereafter ap- pointed United States district judge, and, having the appointment of all the commissioners in his division, who in turn had the appointment of all the electon officers, he and the other Federal officials there had entire charge of the election. Fort Gibbon precinct was cut oE from the Tanana precinct, although they lay side by side, and the soldiers were all permitted to vote in the Fort Gibbon precinct, where the Army post is located. I gave Mr. Sulzer notice of the taking of these depositions and named Mr. Henry T. Ray, of Fairbanks, as notary public to go down to Fort Gibbon and take these deposi- tions. Mr. Ray went down and the soldiers very largely declined to testify, and on May 30, pending the taking of these depositions, Mr. Ray sent me a telegram notifying me of the difficulty he was having there. This is the telegram I re- ceived from Mr. Ray, and I ask to have it marked as an exhibit and attached to and mde a part of my deposition. Mr. Jones. I make the same general objection as was made to the last offers. (The telegram identified by the witness, dated "Fairbanks, Alaska, May 30, 1917," addressed " James Wickersham, Tacoma, Wash,." and signed " H. T. Ray," is hereto attached and marked "Contestant's Exhibit E.") The Witness. At bout the same time I gave Mr. Sulzer notice of the taking of these depositions. I wrote a letter to the Secretary of War advising him of all the necessary facts in the case and asking him to require the enlisted men at Fort Gibbon to appear before the notary public and give their testimony. The time for taking this testimony was in May, and my letter was written on May 25. On June 9 I received an answer from the War Department, signed by William M. Ingraham, Assistant Secretary of War, in which he notified me that instructions had been forwarded to Fort Gibbon to the commanding officer to require the enlisted men to appear in answer to the subpoena and give tes- timony. I offer this letter in evidence, ask to have it marked as an exhibit, attached to my deposition and made a part thereof. Mr. Jones. I make the same general objection as was made to the last offers. (The letter identified by the witness, dated "War Department, Washington, June 9, 1917," addressed "Hon. James Wickersham, Delegate from Alaska. House of Representatives," and signed " William M. Ingraham, Assistant Sec- retary of War," is hereto appended and marked " Contestant's Exhibit F.") The Witness. This letter from the Assistant Secretary of War, which is marked "Contestant's Exhibit F," was written altogether too late to have any effect whatsoever. It was dated "Washington, D. C, June 9, 1917," and if the information was forwarded at that time it could not have reached Alaska prior to the time set for the taking of the depositions. As a matter of fact, the sol- diers at Fort Gibbon first refused to give any testimony, but finally some of them did appear under the instructions of the commanding officer and gave testimony, but others declined to state for whom they voted, although it is notorious m that country and known to me and all my friends that all of them, except possibly one or two. voted for Mr. Sulzer. As a part of that proceeding notice was also given of the taking of the depo- sitions of the enlisted men engaged at the United States telegraph office at Fair- banks, Alaska, all of whom were men regularly enlisted in the United States Army and none of whom was a resident or citizen of Alaska, and none of whom was entitled to vote there. Mr. Ray undertook to secure the testimony of these men, and, although they appeared, they all refused to testify. I telegraphed to Lieut W H Faust, in charge of these men at Valdez, Alaska, urging him to give his consent to their testifying, and I received a telegram from him in reply saying: "Your telegram erroneous. My men Fairbanks directed comply strictly with law and advice district attorney." Signed, " H. M. Faust." I offer this tele- WICKEESHAM VS. SULZEE. 213 gi-am in evidence, ask that it be marked and attached to and made a part of my ^deposition. Mr. .Jones. I make the same objection as was made to the last offers. (The telegram identified by the witness, dated " Valdez, Alaska, June 14, 1917," addressed '" James Wickersliam, Seattle," signed " W. H. Faust," is hereto appended and marked "Contestant's Exhibit G.") The Witness. The district attofney at Fairbanks, Alaska, is one R. F. Roth, who is one of the most bitter partisans against me in Alaska. Mr. Roth had been applied to in respect to the voting of these men, and I am informed had advised them that they might vote, so that when Lieut. Faust referred the matter to Roth they were advised not to appear and testify, and did not, although all of them voted for Mr. Sulzer. At least they so publicly stated to my friends around Fairbanks. On June 15 I received another telegram from Mr. Ray. the notary public, ad- vising me of the refusal of these soldiers at Fairbanks to testify and of Lieut. Faust's instructions and Mr. Roth's action. I offer the telegram in evidence, ask to have it marked as an exhibit and attached to and made a part of my deposition. Mr. Jones. I make the same objection as made to the last offers. ^(The telegram identified by the witness, dated "Fairbanks, Alaska, June 15-16, 1917," addressed " James Wickersham, Seattle," and signed " Henry T. Ray," is hereby appended and marked "Contestant's Exhibit H.") The Witness. In connection with thiit same matter and to show the publicity given it, I now offer in evidence a page of the Alaska Citizen, a newspaper pub- lished at Fairbanks, Alaska, on Monday morning, June 18, 1917, being a date immediately subsequent to my effort to take the depositions of these enlisted men at Fairbanks. I offer it for the purpose of showing the objection of Mr. Sulzer's attorneys to the taking of the depositions, and I ask to have this page marked as an exhibit, attached to my deposition, and made a part thereof. Mr. Jones. I object to this offer on the same grounds as heretofore stated and on the added ground that it is hearsay. (The page of the newspaper identified by the witness is hereto appended and marked " Contestant's Exhibit I." ) The Witness. In order to identify the particular article appearing in the issue of the paper marked " Contestant's Exhibit I," I wU state that I refer to the article therein under the heading " Signal Corps bunch balks at answering." The Alaska Citizen is a Democratic newspaper and opposed my election, but I am informed and believe that it did not get any part or portion of the big interest bribe fund. In his deposition in Washington Mr. Sulzer referred to the fact that two years ago I received something like 700 majority in the fourth division, and that in the election in 1916 he received 16 majority in that same division. The reason for that change is accounted for by the Thompson-McGowan big in- terest bribe fund, which was expended through the Democratic campaign com- mittees and the Federal bunch in that division for the purchase of newspapers which had formerly supported me and for the control of votes there in the most fraudulent and flagrant manner. In addition to the bribe money sent by the big interests to the fourth division and expended there by Thompson and McGowan, I am also informed that about $1,500 was forwarded from the city of Seattle to the Sulzer campaign managers at Juneau, Alaska, and that it was very largely expended there by the Federal officials for the same purpose. There were enlisted men at Eagle City who also voted against me and f"" Mr. Sulzer at the election of November 7, 1916. Their names were Barney R. Peppersack, Squire Lawry, and Charles B. Murphy, also James S. McDowell. These men were enlisted men stationed at the Fort Egbert Military Reservation at Eagle City, in charge of the Government telegraph station there. I was Informed by Mr. U. G. Myers, by a letter of February 5, 1917, that they had voted. I offer that letter in evidence, ask to have it marked as an exhibit and attached to my deposition and made a part thereof. Mr. Jones. I object on the same grounds heretofore stated. (The letter identified by the witness, dated "Eagle, Alaska, February 5, 1917," addressed "Hon. James Wickersham, Washington, D. C," signed " U. G. Myers," is hereto appended and marked " Contestant's Exhibit J." ) The Witness. Soon after receiving that letter in Washington, D. C, I sent 9. telegram to Mr. U. G. Myers asking him to have a personal interview with •each one of these soldiers and ask him if he voted for Mr. Sulzer at that election, 214 WICKERSHAM VS. SULZER. and to send men the information contained in tlieir answers. This paper I Lave in my hand is a copy of my telegram to Mr. Myers, which I sent him under date of May 12, 1917. In that telegram I asked Mr. Myers to ask each one of these enlisted men if he voted for Mr. Sulzer, and to answer " Yes " or " No," and I requested him to show the telegram to them and to ask them to answer faithfully. On May 14, 1917, I received a telegram from Mr. Myers, in answer to my telegram to him, saying " Compliance'with your night letter, Barney 11. Peppersack, Squire Lawry, and Charles B. Murphy answer ' Yes.' James S. McDowell declines to answer." I ask to have the copy of my telegram ta Mr. Myers and his answer thereto marked as one exhibit, attached to my depo- sition and made a part thereof. Mr. Jones. Same objection. (The copies of telegrams identified by the witness are hereto appended and marked "Contestant's Exliibit K.") Cross-examination by Mr. Jones : Q. Referring to Contestant's Exhibit K, Judge Wickersham, have you any knowledge of your own as to the manner in which these men voted? — A, I was not there and, of course, do not know, except from what they and my friends there have written to me and telegraphed to me. Q. Such as is contained in this Exhibit K? — ^A. The testimony is substan- tially of that character ; yes. Q. Did you take the depositions of these men? — A. I did not. My failure ta get the depositions of the other enlisted men who were all under the control of l^ieut, Faust, and who had also been instructed by Mr. Roth, United States district attorney there, not to answer, satisfied me that it was of no use to go f ny further in the matter. Mr, Jones. Then we move that Contestant's Exhibit K and the introductory remarks by Judge Wickersham in offering it in evidence be stricken from the record on the ground that it is wholly hearsay, and it is not competent, rele- vant, or material, and it is not within the issues here, and upon the further ground that it is not proper rebuttal testimony. As a preface to that objection let the record show, as it does show, that Mr. Wickersham's testimony was given without the aid of questions, but as a direct recital by him of what he conceives to be evidence in this case, and that I, as counsel for Mr. Sulzer, did not have an opportunity to object to the various statements as they went in. Q. I will ask you, Mr. Wickersham, in regard to your statement that $1,500 corruption fund went from Seattle to Juneau, Alaska, and was there turned over to the campaign managers and to the Federal officials for use against you in your election campaign, whether you know that of your own knowledge? — A. Well, I feel obliged to say no, although the statements and facts with regard to it are of such character that it looks very close ; that is, I can almost say that I know it of iny own knowledge, but I feel that I am obliged to say no,, because I know the rule. Mr. Jones. Then I move that the testimony of Mr. Wickersham with x"egard to the statement about a campaign fund being sent from Seattle to Juneau and there used by the Democratic campaign managers and by the Federal officers or officials be stricken as wholly hearsay evidence, and on the further ground that it is not proper rebuttal testimony and not within the issues in this case. Mr. WicicEESHAM. Let me make this explanation : It is not altogether without some support, because a part of it was the money that Mr. Lathrop admitted having sent ; that is, $300. That was a part of the money sent. Mr. Jones. He didn't admit sending it to Juneau, though. Mr. Wickersham. Oh, no ; but that is where he did send it. Q. I will ask you if you made any effort to have any testimony taken to sub- stantiate your statement with regard to this $1,500? — A. Yes; I called Mr: Lathrop for that purpose. Q. Is that all? — A. That is all. These men who do things of that kind do them secretly and underhanded and won't testify ; and if they do testify, they won't tell the truth. Q. That is a common trouble that almost everybody suffers in attempting to prove things. — A. Yes ; but it is particularly flagrant in Alaskan politics. Q. AVith regard to the statement that you made a few moments ago as to the Alaska Citizen at Fairbanks, a newspaper published there, ha-jiing received no part of the bribe fund that you have frequently referred to, do you know that of your own knowledge? — ^A. Well, I know that from the conditions surrounding WICKEESHAM VS. SULZER. 215 the situation. At least I am satisfied beyond any doubt that it is true. It is notorious in Alaska. Q. You for a long time practiced law and were a Federal judge? — A. Yes. Q. And you know that certain things are admissible and certain things ai'e not admissible as evidence? — A. Yes; you and I are both attorneys, and we both know that frequently matters that are not strictly admissible under the rule are facts that are well known to be true, as common knowledge. These matters were common knowledge and notorious in Alaska. Q. You had an opportunity, did you not, to get the facts from those who did know? — A. Mr. Thompson states the facts in his letter, which has been offered in evidence, and which is so well known and so notorious that everybody knows it in Alaska. Q. Now, then, in general, I will ask you this : In regard to the letter offered in evidence and referred to as the Thompson letter, being " Contestant's Exhibit A," I believe you stated that that was a letter received by Mr. Heron? — A. Yes. Q. Did you have an opportunity to take Mr. Heron's testimony? — A. Yes. Q. You did not receive the letter yourself ?— A. I did not ; no ; but I know Mr. Thompson's writing. Q. You know Mr. Thompson's writing? — A. I think I do. I am familiar with his writing, and I am satisfied beyond any doubt that that is his writing. Mr. Heron thought so, and everybody thinks so. Q. Y'ou did not receive the letter yourself? — A. No, sir ; I did not. Of course, I have seen others of these letters, which were exhibited to me by other news- paper men in the territory. Q. Perhaps you have the letter somewhere else in your record, but what I wish to know is whether or not you, having an opportunity to have this letter Introduced in evidence after identification by somebody who received it, took advantage of that opportunity? — A. No; I did not. Mr. Jones. Then, I move that it be stricken on the ground that the exhibit itself is not the best evidence, that it is hearsay, and that it is incompetent, irrelevant, immaterial, and not proper rebuttal testimony. A. Now, in respect to that matter, this same letter was published by me, by being offered before the Committee on Territories in the House of Representa- tives during the winter, and it was published publicly in the printed hearings of the committee, and in that way it came to Mr. Thompson's attenton and to Mr. McGowan's attention. I did have a subpoena issued for Mr. McGowan. I was informed that Mr. McGowan would be here in the city of Seattle, Wash., and I had a subpoena issued for him. His wife came but Mr. McGowan did not come and, of course, you realize that I did not have time, in 10 days, to reach him is San Francisco, where he is ill,_ and could not be gotten at probably, and I could not within that 10 days have "gotten the deposition of Mr. Thomp- son, and I don't think it is necessary, because I know his writing and I know he issued it, and many of the newspaper editors of Alaska received the same letter and I saw them and they told me about it. Mr. Jones. I move that the statements of the witness regarding conversa- tions he had with editors and other persons about having received the Thomp- son letter be stricken also as hearsay. Q. Referring to " Contestant's Exhibit I," being a copy of the issue of a newspaper of June 18, 1917, I will ask you, Mr. Wickersham, if you had an opportunity to take the testimony of the editor or the reporter who wrote this article? — A. Yes, I had; but I didn't do it. I didn't do it because it was not necessary to do it. Mr. Jones. I move that " Contestant's Exhibit I " be stricken on the ground that it is not the best evidence, that it is hearsay, incompetent, irrelevant, im- material, and not proper rebuttal tesimony. A. Of course, you undersand that when I say " yes," that I had an oppor- tunity to take their testimony, that it is almost impossible to take depositions within the limited time allowed, at such distances. Notice had to be served on Mr. Sulzer in Washington, D. C., and subpoenas served in Fairbanks, Alaska, or in California, or wherever the witnesses were. We simply didn't have time to do it. Q. I presume you will admit, Mr. Wickersham, that Mr. Sulzer was up against the same proposition? — A. No. Mr. Sulzer had 40 days in which to do those things, and I only had 10, but Mr. Sulzer would not have taken their dep- ositions any way. - Q. Referring to " Contestant's Exhibit H," being a purported telegram from Henry T. Ray, of Fairbanks, dated June 15, 1917, to James Wickersham, at 216 WICKERSHAM VS. SULZEB. Seattle, I will ask you, Mr. Wickersham, if you had any opportunity to take Mr. Ray's testimony as to the matters set forth therein? — A. Well, yes, possibly; no, actually ; but those matters appear in the depositions that Mr. Ray did take of these other people. I only introduced these telegrams for the purpose of showing the connection between the official actions of the War Department and Mr. Ray's actions and the actions of these soldiers and to show the reason why they refused to appear. That much of it, of course, appears in the record of the other hearings up there. Mr. Jones. I move that the exhibit itself, the introductory remarks by which it was introduced, and the explanatory remarks partially just given by the wit- ness in answer to my question, be all stricken from the record on the ground that they are hearsay, incompetent, irrelevant, immaterial, and not proper re- buttal. Q. Referring to " Contestant's Exhibit E," being a purported copy of a night lettergram on the blank form of the Postal Cable Telegraph Co., addressed to •lames AVickersham, Tacoina, Wash., and signed by H. T. Ray, dated May 30, ]917, I will nsk you, Mr. Wickersh and had to give up a part of his month's salary, and sometimes the whole of it to that fund. Q. Did you take the testimony of any of those Federal officials? — A. I did not. Mr. Jones. I move that that be stricken also. A. But it is so open and notorious that none of them will deny it. James Wickebsham. Subscribed and sworn to before me this 8th day of August, 1917, [seal.] Dwight D. Haktman, Notary Public for the State of Washington, residing at Seattle. State of Washington, County of King, ss: I hereby certify that I am a notary public in and for the State of Wash- ington, residing at Seattle, and the notary public named in the attached and foregoing notice ; that on the 6th day of August, 1917, beginning at 10 o'clock a. m., there appear before me as witnesses called by the contestant, James M. Lathrop, W. B. Ballou, and George Dreibelbis and James Wickersham named in said notice, that contestant appeared personally; that Robert M. Jones, Esq., appeared in behalf of the contestee ; that questions were asked and answers thereto given in the examination of said witnesses, as set forth in the attached and foregoing pages, the questions and answers being reduced to writing in my presence and \inder my direction by Lee Johnston, a sten- ographic reporter and a disinterested person ; that after the questions asked and answers given thereto were reduced to writing the same were read over by the respective witnesses and the transcript thereof subscribed by them as :i full, true, and correct transcript of their testimony ; that the exhibits hereto appended, marked, respectively, " Contestant's Exhibits A to K," inclusive, are the identical exhibits identified by the witnesses in the course of their examination. In witness whereof I have hereunto set my hand and my notaria'l seal this nth day of August, A. D. 1917. [seal.] Dwight D. Hartman, Notary Public in and for the State of Washington, residing at Seattle. Contestant's Exhibit A. [Fairbanks Daily News-Miner, Sept. 12, 1916.] Dear Brother in Sin: Did you ever study the question of prohibition? How much? A year ago I didn't know there was an argument against prohibition, or what prohibition was. A year ago, when Tom McGowan, on the day of my departure for the outside, asked me what the attitude of my paper would be on the prohibition question in November next I told him that not for less than WICKERSHAM VS. SULZER, 219 $5,000 cash (some money!) would I allow a word to be printed in my News- Miner in favor of the cause of liquor — that it had never done me anything but harm, and that I was " agin " it all the way. This year I came back to fight prohibition every step of the way, for nothing. In my study, started by accident and surroundings and continued for personal reasons, I " flushed " several thousand dollars from the liquor trust and brought with me contracts to fill out as I desired dividing it among the newspapers of Alaska as I desired, and I did so divide it, with a remainder which will just pay me from $5 to $7.50 for every time I mail proofs of the stuff in my paper to the pupei-'s on my list ; for such circulars and pamphlets as McGowan may oi'der, and for as many copies of my paper at 5 cents as McGowan may be able to use around election time — mine is the only paper on the list of 11 Alaska papers which has no contract with McGowan and no sum set for the support of my paper in the contest. This will not read right to you boys, kno^ving what a king grafter I really am, yet it is the absolute truth, and I will make affidavit to the fact if you wish it and have my wife make one, also — she is a Catholic and doesn't lie. Why do I do this? Why didn't I keep all the money, or most of it? Why did I split it, especially with some of the little fellows who can't help much, if any? I'll tell you, and " tell you truly " : Because I discovered that prohibition does not prohibit where it is working, and that it means small-town, busted city, Impoverished and criminal country and State, and much loss and misery without any appreciable good ; because under prohibition my paper couldn't make a living for me in Alaska, or my town educate my two baby boys, or my friends live and prosper in interior Alaska with the revenue from liquor cut off from this municipality ; because prohibition means plenty good booze for the provident well-to-do man at a slightly higher price, but bum booze and higher-priced booze for the rough- neck or improvident man ; because the rough-neck and freedom-loving work- man wouldn't walk into Tanana to take the gold out for us if this camp had the lid on it — because there isn't an excuse for prohibition here, and there are a million excuses for fighting it. I contracted the easy money to you boys because I wanted you with me and knew that you would be with me for Alaska if you knew as much of the subject and the workings of prohibition as I do ; because I believed I could make all the money I need in straight business if prohibition did not come to knock my business, and because I knew that I would need your help to let all the people of Alaska hear something of the other side of prohibition, and you were enti- tled to advertising rates for space to a big extent. (Incidentally, and to show you that "virtue is its own reward," I will tell you confidentially that I am just back from Dawson, where they sent for me to come and save them from prohibition, after they had already been so lost to the Prohibitionists that, seemingly, saltpeter couldn't save them. They asked me to come and fill five columns a day in the Dawson News, hired for the oc- casion by the business men. They were offering five to one that prohibition would carry, and no takers, when they sent for me. I told them to go to , but their need was so great that they offered me more than the salary of the President of the United States for the three weeks' work they wanted, and the price was so great I brought in Southworth and had him run my paper for me and went to Dawson. The News, from carrying water on both shoulders and never having an opinion on any subject, is dying of dry rot, and has no hiiman interest features, but it is the only paper there, and they had to use it. I was " Santa Claus " to the News gang — they told the business men that nobody could fill five columns a day for three weeks, but I not only did, but took every extra inch of their paper that money could buy at 50 cents an inch, and kept it all filled. I took with me a trunkload of literature against prohibition, and never used a bit of it except a couple of pages of Kansas statistics, which the Prohibitionists of Dawson, Canada, compelled me to use. because they had no other star example of prohibition except Kansas. I took Canada and her pro- hibition history and achievements and beat them to death. I knew more Cana- dian history than the Canadians did, and I compelled them to lay down on every proposition their ministers tackled — at last I discovered that I had only to spring a statistic or fact (real or alleged) to set the ministers back on their haunches, and after that I kept them sitting there — when you know they can't come back, it is easy to print " facts " to keep them going. At the last moment they took all the money they had left (after paying for space in the News to confute my talk) and sent to Toronto for Ben Spence, the linguistic stallion 220 WICKEKSHAM VS. SULZEE. of the prohibition corral of Canada, and brought him to Dawson to speak on prohibition. He got there in time to speak two nights before election ; I was on my way back home by then, but I left copy for the two days before election, and told them the night he spoke what he would say and what he wouldn't say ( I had his stock speech ! ) and in the next eve's paper printed an " I told you so !" Then they voted. Their 5 to 1 prohibition resulted in a " wet " victory by 3 votes ! They couldn't deny that Thompson's newspaper campaign saved that camn. at any rate — it would have put them worse on the bum than they are, and they are almost dead now. Now they are sending me a bonus of 1^500 for my work — after it is ended.) You will be surprised if you look into the matter to discover what a mone- tary loss prohibition would mean to your camp and what a setback it would give Alaska. You know whei'e the money comes from now for your schools and fire department and municipal improvements — from the licenses of the liquor dealers. You know that two-thirds or more of all of the revenues of the United States Government come from the liqiior industry or the sale of liquor. You also know that to this date the Prohibitionists have never told you where you can make up the loss in revenues, and the United States Gov- ernment has never to your knowledge sought to suggest a way to replace these revenues— never intimated that there is a way, to your knowledge. Before the Bi!? Dog at Washington starts to consider running this United States of ours without revenues from the liquor industry, what excuse is there for poor A'aska trying to solve the question for the Government? In Dawson the Puri- tans told the people " Pay no attention to the question of revenues — the reve- nues will take care of themselves ! Did your revenues ever take care of thenl- selves. to your advantage? Did your town's revenues ever take care of them- selves, without help? Can revenues take care of themselves? Will you turn your paper over to anybody who wants to try to run it, and who believes that the revenues of a paper will take care of themselves? I see you doing it! Yes, that is the argument of prohibition, everywhere, expressed or inferred^ that the revenues will take care of themselves, and wherever prohibition i^ working, the revenues do take care of themselves, i. e., there is no money for charity or public improvements. And, in Alaska, the resvilt would be W()fs6 than anywhere else, for we are not our own bosses and have to beg hard fo< money from Washington, no matter how much Washington may owe us. for at Washington they are taking care of the revenues, and there are many reve- nue-getters and iinderstnnders of revenue on the iob. Your schools and fire department would be cut one-half, if not more, with prohibition, so far as the necessary revenues to run them are known or suggested under prohibition. I'our town would have hard work to get the necessary workers to come to a dead-alive-dry-camp to work to do your producing, and you know it. You don't know how near the Puritnns — the men who have nothing and never had — are going to come to put prohibition upon you in November ! You think there's no chance but there is. After November 7 it will be too late. I don't blame you for not printing the stuff I send you and for which you signed con- tracts to print, for it is too long in articles for most any paper but mine ; yet I do blame you for not getting into the game on your own account nnd making a little talk medicine to save your camp and Territory. I realize that you don't do this because you have not studied the question, but I want to tell you now that if you do study it and read the arguments and facts against prohibition you will probiibly find, as I have found, that it is the most interesting and satisfac- tory study of your later age. It is a virgin field of study to the average man; but you can't read for an hour for a dozen nights the arguments and facts against prohibition without becoming in those 12 hours the most uncompro- mising enemy to prohibition that you ever heard of. Try it and see. If it don't " get " you I'll guarantee to send you a new suit of clothes. I'm on the water wagon "for life." It isn't for me. As I told the people of Dawson the night be- fore election in the Dawson News, I wouldn't take a drink of beer or whisky to save Dawson and all Canada from hell and damnation, but I wouldn't say a word in favor of prohibition as it now exists to save my life. Briefly, logically, prohibition is the intemperance of temperance. It stands in exactly the same relation to the liquor problem as common or low-down drunk- enress stands; they are the two extremes of temperance. You know this, although you may never have thought of it. It stands for compelling by legis- lation men to be moral and successful along the lines of life thought out and proposed by men who have never been successful and never will be. It proposes WICKEKSHAM VS. SULZEE. 221 always to destroy existing conditions and never offers anything of a material nature that can logically be accepted as a substitute for the loss. It infers that the average man is a drunkard and needs protection against the drinli which will drag him down, whereas one-third of the people of the United States are not even moderate drinkers ; half of them seldom if ever take a drink ; only a small minority of the people drink; and only an unappreciable number of nil liie people of the United States may be said to drink to excess. Take a census of all the people who go into a saloon in your town during the day ; compare it with your population and see how insignificant it is. Some go more than once ; many go too often ; some remain all day, and they seem to number a lot, yet compared with your population they are few, indeed. Shut out the saloons, and you would have twice as many places where liquor could be bought ; it would be poorer liquor and higher in price, but a man will get drunk on lemon extract if he can't get anything else and wants to get drunk ; tell a man he can't do any- thing he has a right to do, and he will show you, even at his own cost. It's no skin off my posterior if none of you say a word against prohibition, but as one of you I advise you at this time that for your own sake and your paper's sake you ought to, and now. I wouldn't advise you to say a word in favor of your local saloons — would advise you to roast them and make them be good for the protection of the camp and the people. The saloon gives the excuse for the Anti-Saloon League and should be roasted Into playing the game. Few saloon men know how or are willing to play the game, and you ought to tell them in the paper that they must get In and make the other fellow play the game and play it right, or you will go after them and close them all. Properly conducted, the saloon is more honorable than the average drug store and a better protection to humanity at large. You may depend on it that neither McGowan or the liquor people of the outside will ever hear from me that all of you boys who are getting a few dollars from the liquor men of the outside for anti-prohibition work are not printing column after column of dope for them. But for Alaska's sake and the sake of your home town don't let them put prohibition on Alaska and put most of us out of business. Alaska was all prohibition to 1897 and before. You remember those days — the days of Soapy Smith. Do you want them back? It is easy to get them if you want them. Just keep your mouth shut until after November 7, and you may have those days with you as soon as prohibition goes into force in Alaska. Fraternally, W. F. Thompson. (This Merg. letter is confidential and not for publication or to show to anyone. ) Dear Heeon : This is confidential — a letter to the boys on my list who have taken the money and are not doing the work. I send it to you to give you a sober second thought, for it's all true. If you'd study prohibition from both sides for two nights, you would be as keen against it as I am. It don't affect Nenana and Anchorage (Govt, towns) as it would the rest of Alaska, but under it our 8-teacher school would drop to 1 teacher. Can't consider Anchor- age matter. Am doing too well here. Good luck. W. F. Duflield went to Frisco and tried for backing on auti-prohi. grounds ; referred to. me ; turned down hard. W. F. Contestant's Exhibit B. Dillingham, Alaska, Ma.y 5, 1917. Hon. James Wiciceesham, Washirigton, D. C. Sir: Word has just reached here, confirming rumors which have been circu- lating here during the past two months, to the effect that the votes cast at the election held November last, at the Dillingham voting precinct and at other voting precincts, in the Bristol Bay district, had been declared invalid, and have been thrown out of the count, because the proper ballot had not been used. We, the electors of this precinct, hereby express our strong, disapproval of this action, as we cast our votes in good faith, honestly, and fairly, thereby expressing our wishes relative to the result of such election. 222 WICKEESHAM VS. SULZER. It was not the fault of either the election judges or the voters of this precinct that the proper ballots were not at our disposal. We have held two elections here during former years, and at such elections we have made our own ballots as we did in this instance. As we were not furnished the proper ballots at the election November last, and as we were not informed as to any changes in the election laws, we feel that we have lost our votes unjustly. The necessary registration books, tally books, etc., were furnished by the clerk of the district court, but there were no ballots with them. It seems to us that if these votes were thrown out on account of the fact that the official ballot was not used, that the fault lies with the authorities who are supposed to furnish these supplies for election purposes, and therefore feel that we are and were deprived of our right as American citizens to cast our ballots for the persons we desired to represent us in our Government. Respectfully, Adolf Osteehaus, Judge of Election, Louis Hansen, Judge of Election, Otto A. TjArson, Postmaster, Peeston H. Nash, Government Teacher, Resident Citizens of Dillingham Toting Precinct, Bristol Bay, Alaska* Contestant's Exhibit 0. Dillingham, Alaska, May 5, 1917. Hon, James Wicker sham, Washington, D. C. Sir: Rumors have reached here during the winter that the votes cast in this and other precincts in this district at the election held November last were thrown out as invalid, thereby causing you to lose the election as Delegate to Congress. While these rumors have not been confirmed from any authoritative source, we are informed by the first persons coming in this spring on the cannery boats that such rumors are correct. We had understood from the accounts received here, through the few papers reaching us this winter, that you had been elected by the votes from this place, and that this district had been called the California of Alaska for Wickersham, as your election depended on the votes from these precincts, as the presidential election depended on the California vote. The mail service here is very poor, and we receive very few papers, there- fore can not keep in touch with current events. If it had been known by us ^t an earlier date, we might have made some protest against having these votes thrown out. We believe that these votes should have been counted in your favor, as the result of the voting here was an honorable and true expression of' the M'ishes of the voters, and the votes should not have been thrown out on account of a slight technicality. From information at hand it seems these votes were declared invalid on account of not having or using the official ballot. If this is the case, why were the official ballots not furnished us. Registration books, tally books, etc., necessary for holding said election were placed in the hands of the election judges by the commissioner, but there were no ballots, and we were not informed of the requirement that other ballots used must be certified to by the election judges. The commissioner gave us the names of all candidates, as nearly as he could recollect them, and we made typewritten ballots, as nearly in the proper form as we could. This has been the practice here at every election held, and being ignorant of law as passed by the Alaska Legislature relative to the matter,, we thought the voting was perfectly legal. We regret very much that you should lose the election through our ignorance of the law, or through the negligence of some official in not sending us the proper ballots along with the other paraphernalia necessary for holding an election. We have given you a good majority at each election held here, and do not like the idea of losing our votes this time, as we are American citizens and want our full rights as such in our representative government. Respectfully, Adolf Osteehaus. WICKEESHAM VS. SULZER. 223 Contestant's Exhibit D. [Telegram.] Tanana, Alaska, November 5-6, 1916. Judge Wickers HAM, Cordova: Please wire immediately if enlisted soldiers who have been stationed here two years can vote at Territoritil elaction. They have resided on military- reservation entire time. Nigger in v\'oodpile. Joseph Anicich. Contestant's Exhibit E. [Night <^ttergram.] Faiebanks, Axaska, May SO, 1917. .James Wickersham, Tacoma, Wash.: Acting under advice district attorney, soldiers will refuse obey subpoena or testify unless I produce statutory authority to take depositions. Claims subptpnas must be issued competent court, otherwise can not recognize. Wired you this effect yesterday Washington. Leave for Tanana to-night on fast launch to serve subpoenas for hearing 6th. H. T. Ray. Contestant's Exhibit F. War Department, Washington, June 9, 1917. Hon. James Wickersham, Delegate fro^m Alaska, House of Representatives. Dear Mr. Wickersham : I have the honor to acknowledge the receipt of your letter of May 25, 1917, in the matter of taking the testimony of certain enlisted men at Fort Gibbon, Alaska, and Fairbanks, Alaska, with reference to the election contest between you, as contestant, and Charles A. Sulzer, con- testee, and to advise you that the commanding officer. Fort Gibbon, Alaska, has been instructed to give such of the enlisted men as may yet be stationed at that post opportunity to appear in response to a subpoena and give testimony concerning the matter indicated in your request. Similar instructions have been sent with reference to the Signal Corps men at Fairbanks, Alaska. Very respectfully, Wm. M, Ingraham, Assistant Secretary of War.' - Contestant's Exhibit G. [Telegram.] Valdez, Axaska, June 14, 1917. James Wickersham, Seattle: Your telegram erroneous. My men Fairbanks directed comply strictly with law and advice district attorney. M. H. Faust. Contestant's Exhibit H. [Telegram.] Fairbanks, Axaska, June 15-16, 1917. James Wickersham, Seattle: Witnesses attended yesterday; one testified, several others refused answer any questions whatever. I adjourned hearing till to-day over objection Sulzer 224 WICKERSHAM VS. SULZER. attorney. No one appeared to-day. Witnesses state will not attend further unless instructed by proper authority. Took adjournment to-morrow 1 o'clock. Faust instructed men follow Roth advice. No word received from War De- partment. All objection here my authority insufficient under statute. Wit- nesses follow strictly advice district attorney. Only direct orders superior officers will make them testify. Henry T. Ray. Contestant's Exhibit I. SIGNAX COEPS BUNCH BAXKS AT ANSWERING. Having been subpoenaed by Henry T. Ray to appear before him and answer questions regarding the last Delegate election, all of the members of the detach- ment of Signal Corps men stationed here refused yesterday to do so; that is, they refused to answer the questions propounded and to be sworn after appear- ing before Mr. Ray in answer to the subpoenas. As their authority for taking such action the Signal Corps men contended that Mr. Ray had not the proper authority to question them. After all the men had taken the above-described action Mr. Ray announced that the investigation would be adjourned until Thursday afternoon at 1 o'clock, at which time those who had been subpoenaed would be expected to appear again. Mr. Ray is taking depositions in the matter of the contest of last fall's Dele- gate election instituted by Judge James Wickersham. . He recently returned from a trip to Tanana, where he took 92 depositions of soldiers and others. It is in an effort to perform the duty that has been placed upon him that he is endeavoring to take the depositions of the local Signal Corps detachment. He says that he had no trouble whatever in securing all of the depositions he re- quested at Tanana. Attorneys John A. Clark and Cecil H. Clegg appeared yesterday before Mr. Ray in behalf of Delegate Sulzer. Mr. Ray failed to recognize them, however, as attorneys for the Delegate until Mr. Clark had produced a telegram authoriz- ing them to act. They then filed the following written objection to the pro- ceedings : " On behalf of Mr. Charles A. Sulzer we object to the proceedings herein and to the taking of the testimony of the following witnesses, viz : Robert Loghry, James G. Coleman, Harry Shutts, John E. Pegues, Charles Agnetti, Raphael Myerson, Frank U. Moore. Austiu Foster, Thomas Griffin, William Kirby, Dur- wood M. Hocker. " That no sufficient, proper, or legal notice was given to Mr. Sulzer, as required by section 108 of chapter 8, Revised Statutes of the United States, in that the alleged notice of the taking of these depositions failed to state at what par- ticular place within the town of Fairbanks said depositions would be taken, also because said alleged notice failed to state the name or names of the wit- nesses who were to give testimony in these proceedings, and did not state the name of any witness whose deposition was to be taken under said proceedings; also on the ground that the residence of the witnesses was not stated in said alleged notice, nor the residence of any witness. " On the further ground that no notice whatever, nor any legal notice has been given to Mr. Sulzer as to the proof intended to be offered by Mr. Wicker- sham, or as to the facts alleged by him as the basis for this contest, and that Mr. Sulzer, the returned Member, has no information whatever as to the issues to be presented by this contest, nor has any notice as to the issues in this con- test been furnished or given in any way to any of the witness who are to be examined. " On the further gi-ound that no copy of the notice of contest or- of the answer of Mr. Sulzer to the facts alleged or attempted to be presented by Mr. Wicker- sham is in the possession of the officer taking these depositions, and therefore the same can not be prefixed thereto when taken, for the purpose of being transmitted to the clerk of the House of Representatives, as provided by sec- tion 126 of said chapter 8 of the Revised Statutes of the United States. " It is further objected that the questions propounded, or proposed to be propounded, to each and every witness so to be examined at Fairbanks, Alaska, on the 12th day of June, 1917, are not shown to be within any of the issues presented by the notice of contest and the answer to be filed in this matter, and said witnesses can not know, and do not know, whether or not the ques- WICKEESHAM VS. SULZER. 225 tions propounded to them on behalf of the contestant are proper questions, or are within the issues, or any issues presented in said contest, nor is it possible for Mr. Sulzer to know what the facts are, required to be deA^eloped by him in the cross-examination of said witnesses for the purpose of meeting their testi- mony on direct examination." After Mr. Ray has given Attorneys Clark and Clegg permission to introduce the foregoing objections, he asked Mr. Clark to produce the authority given him to make objection to the taking of the depositions. At the beginning of the hearing, or at the time that the depositions were introduced, he had taken Mr. Clark's verbal statement to the effect that he had been granted authority to act for Delegate Sulzer as a fact. Mr. Clark then failed to comply with Mr. Ray's request to see the telegram or other purported authority, according to Mr. Ray, who said that he gave him until 5 o'clock last night to produce the desired information and then struck the objections from the record of depositions in the matter. Contestant's Exhibit J. Eagle, Alaska, February 5, 1917. Deak Judge : Have intended tor some time to drop you a line re election. We still have hopes you will win out — or, rather, in. At the election here last November, four Signal Corps men voted. They re- side on a military reservation and are the first soldiers ever allowed to vote here, claiming the right under the Territorial act. I understand they inquired of Judge Bunnell, when he was here, if they could vote, and he said he be- lieved they could, but referred them to the district attorney, who later advised they could vote. With kind regards to Mrs. Wickersham and George, and hoping for your success, I am, Sincerely yours, U. G. Myers. Hon. James Wickebsham, Washington, D. C. Contestant's Exhibit K. FTelegram.] Washington, D. C, May 12-13, 1917. U. G. Myers, Eagle, Alaska: Have personal interview with each soldier who voted November 7 last at Eagle and ask each if he voted for Charles A. Sulzer. Send me night letter, giving full name and answer yes or no. Show this telegram to each soldier and ask him to answer faithful. James Wickersham. confirmation. [Telegram.] Eagle, Alaska, May 14, 1917. Hon. James Wickersham, House of Representatives, Washington, D. C: Compliance with your night letter : Barney R. Peppersack, Squire Lowry, and Charles B. Murphy answer " Yes " ; James S. McDowell declines to answer. U. G. Myers. notice of deposition. To the above-named contestee, Charles A. Snlser, his attorneys, J. A. Sellenthal, and John R. Winn, esquires: You will please take notice that on Monday, the 6th day of August, A. D. 1917, at 10 o'clock in the forenoon of that day, the contestant, above named, 13289—17 15 226 WICKEESHAM VS. SULZER. will take the deposition of Charles W. Hawksworth, David Waggoner, Mabel Le Roy, Esther Gibson, and J. W. Bell, before H. B. Le Fevre, a notary public, at his office in the Seward Building, in the town of Juneau, Alaska ; said wit- nesses to be tlien and there produced by tlie said .lames Wickersham ; and the evidence of said witnesses then and there adduced will be submitted by James AA^ickershtim in the above-entitled cause. The said proceeding before said notary public will be continued from time to time until the said deposition has been taken. Dated this 2d day of August, A. D. 1917. James Wickeksham, By John Rustgabd, Attorney for Contestant. This is to certify that under and pursuant to the foregoing and hereto at- tached notice of deposition : The deposition of David Waggoner was taken before the undersigned notary public, at his office in the town of Juneau, Alaska, between the hours of 10 o'clock a. m. and 4 p. m., on the 6th day of August, A. D. 1917, beginning at the hour of 10 o'clock ; John Rustgard, Esq., appearing as attorney for contest- ant, James Wickersham, and J. A. Hellenthal and John R. Winn, Esqs., appear- ing as attorneys for contestee, Charles A. Sulzer. Before the said witness, David Waggoner, was sworn as witness on behalf of contestant and before any proceedings were had, the following objection was made by J. A. Hellenthal to the taking of the deposition : Counsel for the contestee, Charles A. Sulzer. object to the taking of testimony under notice served, for the following reasons : ' In the first place, the notice does not give the place of residence of any of the witnesses, and is in that regard insufficient under the statute, and for the further reason that under the statute five days' notice must be given, whereas the notice gives but four days' notice. DAVID WAGGONER, a -witness on behalf of the contestant, being first duly sworn to tell the truth, the whole truth, and nothing but the truth, testified as follows : Direct examination by Mr. Rustgabd: Q. State your full name, Mr. Waggoner. — A. David Waggoner. Q. Where do you live? — A. Juneau, Alaska. Q. How long have you lived in Juneau? — ^A. Since the 28th day of September. 1914. Q. What is your occupation ? — ^A. Presbyterian minister of the native missions in Juneau and Douglas. Q. Prior to coming to Juneau, where did you live? — A. At Klawock, Alaska. Q. Whereabouts is Klawock? — ^A. About midway on the west coast of Prince of Wales Island. Q. How long did you reside at Klawock or in that neighborhood? — ^A. My home was in Klawock from about August 11, 1901, until the 26th of September, 1914. Q. At that time and during that period, you were the Presbyterian missionary among the Hyda Indians in that neighborhood? — ^A. Not all the time. Up until the summer of 1906 I had charge of the Thlinget Indians at Klawock and in that neighborhood, and the Hyda Indians also from the spring of 1906 until about September, 1914. Q. The Thlingets and the Hydas are two distinct races of Indians, speaking two distinct languages? — A. Yes, sir. Q. Are you acquainted at Hydaburg, Mr. Waggoner? — ^A. Quite generally. Q. What time was Hydaburg established? — A. In the fall of 1911. between September and November. Q. That is an Indian village established for Hyda Indians on the Government reservation created for that purpose? — A. The Indians were there prior to the establishing of the reservation, but the reservation was established upon their request, and it was for Hydas and other natives. But the proceedings were tinder way at the time they went there is September. Q. The Executive order creating the reservation was not actually signed until after the Hydas had established themselves in that place? — A. I think In 1912. WICKEESHAM VS. SULZER. 227 Q. But the proceedings to have the territory segregated as an Indian reserve aiad commenced prior to tlie establishment of the Hydas at that place? Mr. Hellenthal. I make the objection that nothing in the evidence of these Hyda Indians can be reserved as rebuttal testimony, and I make tlie further objection that the Hyda Settlement is not an Indian reservation, but a mere withdrawal of Government land for the use of the Indians by Executive order. If any testimony is to be adduced tending to show that this is a reservation, tlie Executive proclamation is the best evidence. Mr. RusTGAED. You may answer the question. A. I think it had. Q. At the present time are there any but Hyda Indians living on that reser- vation? — A. I believe there are. I think there are a few Thlingets — very few — and a few white married men, and the Government employees. Q. Can anybody reside on that reservation except those who have the permit of the Government officials? Mr. Hellenthax. I object on the grounds that that is not rebuttal or the i>est evidence. Mr. RusTGAED. Answer the question. A. I think the permission is somehow arranged for through the town council. Q. The permission must b^e had through the town council? — ^A. Yes; that's what I think. Q. The reservation is primarily in charge of the United States Bureau of Education? Mr. Hellenthax. I object on the grounds of this not being rebuttal and of the best evidence. Mr. RusTGAED. Well, the Bureau of Education built the wharf there? A. The natives built the wharf. Q. Who furnished the money ?— A. The natives. Q. The Bureau of Education built the school? — A. The school building. Q. And the United States Bureau of Education paid the teachers? — A. Yes, sir. Q. They do not at the village have what is known as the Territorial school, under the Nelson Act? — A. All native schools are under the Bureau of Educa- tion, inside and outside of incorporated towns. Q. There is no other school at Hydaburg except the one operated by the Bureau of Education? — ^A. No, sir. Q. I hand yoij here a list of names purporting to be a certified copy of the registration list of the election for Delegate from Alaska, held at the precinct of Sulzer, Alaska, November 7, 1916, and I ask you to read from that list the names of such Indians as you know to be residents of Hydaburg. Read the names slowly enough so that Mrs. Burbach can get them. Objection by Mr. Hellenthal, counsel for contestee, Charles A. Sulzer, on the ground that the testimony sought to be elicited is not rebuttal ; that no testimony was taken on the part of the contestee in relation to the election held in the precinct of Sulzer, and that there is therefore nothing to rebut. The objection being especially urged because the contestee would have no opportunity to bring witnesses to prove or disprove any facts in relation to the election in the Sulzer precinct ; and the time for taking testimony on the part ot the contestee having expired and there being no provision under which the contestee may take further testimony after the rebuttal testimony now being taken on the part of the contestant has been completed ; and the further objection is made to this testimony that the same is irrelevant and immaterial, there being no issue raised in the pleadings with reference to the validity or invalidity of the votes in the Sulzer precinct, and no claim made that persons voted who had no right to vote. Mr. RusTGARD. Read the names. A. Alex Peele, George Haldane, Peter Nathlan, Benson Skulthka, J. S. Brown, Paul D. Morrison, Fred Grant, Charlie Scott, Mason Frank, Powell Charles, Thaddeus Isaacs, Matthew Scott, Jack George, David Nathlan, Boyd Nakathla, Albert Nathkang, Sara Douglas, Mike George, Luke Frank, Fred Wallace, Alex Yealthtatze, Robert Edenshaw, Hugh Rogo, James George, David Jason, AVillie Skulthka, Edwin Scott, Alex Spoon ; these are all that I know that live at Hydaburg. It is agi'eed by and between counsel that the objection hereto made to the preceding ques'tion, with reference to the taking of testimony concerning the election at Sulzer precinct, shall go to each and all questions bearing upoa that subject without specifically repeating the same. 228 WICKEESHAM VS. SULZEE. O On this list is tlie name of Katie Nelson. Do you know who she Is?— A She is the wife of Harry Nelson. She is a Hyda woman, but probably Nelson himself lives at Sulzer. . ^.t, Q. You do not know where she lives?— A. I do not know whether in the town of Sulzer or Hydaburg. Q. She is recognized as a Hyda Indian?— A. Yes, sir. Q. I also ask you, in regard to Mrs. Valensolo— she is the wife of Joe Valensolo. Now, is she a Hyda Indian?— A. Yes, sir. ^ „^ . , Q But she used to live at Hydaburg?— A. I think not. She was married and living with her husband prior to the establishment of Hydaburg. Q Where did she live then?— A. Mostly at Howkan. Q Howkan is an old Hyda village?— A. Now deserted. Q. Now deserted?— A. Yes, sir. Q. But until the establishment of Hydaburg, Howkan was one of the Hyda villages?— A. Yes, sir. „ , ^ Q. Another Hyda village was Klmquan?— A. Yes, sir. v^„ . ,„.fK Q. Hydaburg is a consolidation of these two Hyda villages?— A. Yes, with ^ Q^Have* either^ of the counsel for Sulzer in this contest called upon you recently to ascertain what you were expected to testify to in this case?— A. No, sir That is, nothing in regard to what I should say here. 6 Well what I mean is this, Mr. Waggoner: After the notice was given to take your deposition, you were called upon by them with reference to these fjipts'- A Yes sir. Q At that time they knew you were to be a witness?— A. Yes, sir. q' And they told you they knew you were to be a witness. ?— A. Yes, sir. Q. You were called upon by Mr. Hellenthal.— A. Mr. Sy " Hellenthal. Q. Yes ; he is now present in the room ; and a brother and partner of J. A. Hellenthal, in business.— A. I believe so. ^ ^^ ^„ ^ a. 4. a Q. What time did he call upon you with reference to that?— A. Saturday — Friday — Friday evening. Mr. RusTGA^D. I think that is all. Cross-examination by Mr. Hellenthal : Q Mr Waggoner, you have lived at Klawock and Hydaburg for a number of years?— A. Klawock has always been my home before I came to Juneau. Hydaburg was part of my parish for four years. , Q The two villages are neighboring villages —A. Fifty miles apait. Q. The Alaskan natives residing in these two villages are in about the same state of civilization? — A. About. * t i, Q You have been acquainted with them for a number of years?— A. I have known the Thlingets at Klawock since August 11, 1901, and most of the Hydas ^^^O^ You knew* many of these Hyda Indians before they moved to Hydaburg?— A. Yes, sir. Because of the fact that I acted as their minister, and they also were visitors at the town of Klawock. „ . ^r ^ i. ^* Q. They were then residing in the neighboring villages?— A. You speak ot the Hydas? „ , ^ t^,. Q Yes — A They were residing at Howkan and Klinquan. O Thev had been residing in these villages ever since the white man came to Alaska?— A. Yes ; I think so. I do not know when the Hydas came to Alaska. Q. It was long before the whites came?— A. I think so. Q Now the names that you have read from the Sulzer list of voters are all natives of' Alaska with whom you are quite well acquainted ?— A. Yes, sir. Q Is it not a fact Mr Waggoner, that all those men and women, while they are Alaskan natives/either of the whole or mixed blood, have long since severed their tribal relations?— A. You mean those of Hydaburg? O Yes- the names that you have read in the record.— A. The men are the residents 'of Hydaburg, because they have definitely severed their connections with the old customs of the Hydas at the old villages. That was the reason for the founding of the Hydaburg village. . a xr^ Q. There is no such thing as a tribal house at Hydaburg?— A. No. Q. Nor at Klawock?— A. No. O The names you have read in the record are all young men who have sev- ered their tribal connections before 1911?— A. Not all of them. There are a few middle-aged men who had not given up the tribal customs prior to about- well, a few years ago. WIOKEESHAM VS. SULZER. 229 Q. In 1911 most all of them gave up their tribal relations and established the town of Hydaburg to carry out this very purpose. All of them, when they took up residence in Hydaburg, had to declare that they gave up tribal relations. There were a few names there that did not come in at the beginning of the town. They came in shortly afterwards, did they not? — A. Yes, sir. Q. Now, the town of Hydaburg is not in any sense an Indian reservation, where Indians are kept and herded as they are on reservations in the States? — ■ A. No, sir. The definition of reservation is a little different in Alaska. Q. The town of Hydaburg consists merely of a portion of public land with- drawn with the purpose of giving the Indians a place on which to build a model site? — A. And in which to develop resources on their own initiative. Q. The Indians of Hydaburg come and go as they please? — A. Yes, sir. Q. There is no Government Indian agent to regulate their affairs? — ^A. No, sir. Q. They live in that community just as the white people of Juneau live in the town of Juneau? — A. I think so. Q. Have the same liberties of coming and going? — A. As far as their move- ments are concerned ; yes. Q. The Government does not in anywise seek to restrict their movements or otherwise control them? — A. No, sir. Not physically. Q. The Government has established there a school? — A. Yes, sir. Q. With the view of educating them. But, aside from this, the Indians manage their affairs? — A. The Government intends to educate them in business and town life as well as school. Q. All the names that you have read on the record are names of men and women who can read and write the English language? — A. I can not tell that definitely. Nearly all can read and write. There may be some who can not. Q. They can speak English? — A. Yes. I have held conversations with all of these. Q. In the English language? — A. Yes. Q. They are living in their separate homes like white folks? — A. Yes, sir. Q. They have all adopted the habits of civilized life? — A. Yes, sir. Q. Their houses are such as form the abodes of white men? — A. Of white men in the same circumstances ; yes. Q. Some larger and some smaller ?^A. Some are quite comfortable and fur- nished very well, and some are not so well furnished. Some are about the average home of the poorer class of workingmen. Q. They have a store at Hydaburg? — A. Yes, sir. Q. A cooperative store? — ^A. Yes, sir. Q. The stock is owned by the Indians? — A. Nearly all. I believe provisions have been made for the superintendent of the school to hold a certain number of shares, so that he may be one of the directors of the business. The stock is held by the natives, except one or more shares have been allowed to the school superintendent in order that he may be on the board of directors. Q. The school superintendent purchases a certain number of shares? — A. I do not know that the constitution states definitely how many shares he may hold. Q. The store is managed by the natives? — A. By the board of directors, with the storekeeper. Q. The storekeeper is one of the Hydaburg Indians? — A. Yes, sir. Q. Are there no other stores at Hydaburg? — A. Yes, sir ; there were the last time I was there, but owned by individual natives. Q. Also owned by natives? — A. Yes, sir. Q, And are conducted solely by them? — A. By each person; yes, sir. Q. Is it not a fact, Mr. AVaggoner, that the inhabitants at Hydaburg and Klawock are intelligent fishermen and mechanics?^ — A. Yes, sir. Q. And carry on their avocation in the same manner that white men do under similar circumstances? — A. Yes, sir. Q. Is it not a fact that some of these men are highly skilled mechanics? — A. Yes, sir. Q. On gas boats as well as otherwise? — A. Yes ; and some are boat builders? Q. Carpenters? — A. Yes. Q. Machinists? — A. Yes ; some to a degree — the result of their training. Q. They received their training that you mention in the Indian schools? — A. Yes. Q. Is it not a fact that some of these men work in the mines? — A. I think) not, in Hydaburg or Klawock. I do not know of any of these Indians working in the mines. 230 WICKEESHAM VS. SULZEB. Q. Is it not a fact, Mr. Waggoner, that one of the young men whose mothei resides in one of these communities, by the name of Taylor, is a commissioned ollicer in the United States Army ?— A. Yes ; so I was told by the superintendent of the Indian school at Cheraawa. The mother belongs at Klawock. Q. Is it not also a fact that one of the young natives, raised in one of these' communities, is now serving the United States in the capacity of recruiting officer in the State of New York, teaching the white people of the most populous city in the United States their duty as American citizens? — A. I believe so. Q. Mr. Waggoner, as an American citizen and as a man thoroughly familiar with the conditions in these Indian villages, do you know of any reason why these men should not be given the right to vote? Mr. RusTGAED. I ob.iect to that as simply calling for the opinion of the witness and does not call for any statement of facts. Mr. Hellenthal. Question withdrawn. That is all. Redirect examination. Q. The boy that you referred to as teaching in New York; is he one of these voters? — A. No, sir. Q. What is his name? — A. Charlie Cutter ; he is always known as Chief Eagle Horse where he sings on the circuit. Q. Where was he born? — A. At Klawock. Q. One of the Thlinget natives? — A. Yes, sir. Q. How long since he left Alaska? — A. He has been at school and on the lyceum circuit more than 16 years. Q. He has been exhibiting himself for money? — ^A. He has been singing. Q. Singing? — A. Yes, sir. Q. Where was he educated? — A. First at Sitka' and then at Chemawa, Oreg. Q. What is his special duty in New York at the present time? — A. As far as I know from seeing and reading the papers, he is recruiting for the Government. Q. For what purpose? — A. For the war. Q. In the Navy or Army? — A. I suppose in the Army. Q. You have read about that? — A. Yes. Q. He is held out as a curiosity? — A. I suppose so. Q. You do not mean to say that all these natives whotge names you have given at the present time are capable of doing the same as tluit native mentioned who is in New York? — A. You mean on the list? Q. Yes, sir. — A. Not all, but most of them are equally intelligent. Q. You referred to the one who is a commissioned officer? — ^A. Yes. He is the son of William Taylor, of Wrangell. I was told he was a commissioned officer by the superintendent of the Chemawa School. Q. William Taylor is a white man? — A. Yes, sir. Q. And the mother a Thlinget? — A. Yes, sir. Q. How long since Taylor lived in Alaska? — A. He has been going to school two or three years. I think he has been up every summer. Q. Attending at Chemawa, Oreg.? — A. Yes, sir. Q. You said something about these Hydas, when coming to Hydaburg, had to sign a statement that they would abandon tribal relations. Will you explain further what that was? — A. I didn't mean to say that; if I did I made a mis- take in saying " sign." They all had to give their consent to the requirements that are specified in the law of 1887 in regard to the Indian citizenship ; that they had severed the tribal relations ; were observing the American marriage laws and inheritance laws, and had adopted the customs and ways of civilized life. Q. Who provided for that? — ^A. That was provided for in the ordinances of the town council, as I understand it. Q. This is an Indian town council? — A. Yes, sir. Q. It is a council organized under the Territorial law of Alaska, 1915? — A. Not at first. It was simply a council organized by themselves in 1911, and then when the law of 1915 was promulgated, they formed the Indian organi- zation. Q. That is what is known here as an " Indian village government," provided by the law of 1915?— A. Of 1915. Q. And that Indian council determined the qualifications of the residents of Hydaburg? — A. Yes, sir. Q. And that is the council that promulgated the rules which you have re- ferred to?— A. Yes. WICKEESHAM VS. SULZEE. 231 Q. This store which you have also referred to was established under the supervision and by the assistance of the superintendent of schools furnished by the Bureau of Education? — A. Yes, sir. Q. And was established for the purpose of training the Indians in business? — A. Partly so. Partly as a means of saving. Q. In connection with this testimony I offer in evidence what purports to be a certified copy of the registration books of the last election held at Sulzer precinct ; but before I olfer it, I wish the records to show that these pencil marks made in the form of check marks to the left of the names and pencil writings to the right, are marks made by yourself, and not a part of the original list of the certified names. — A. I have made marks here [indicating]. Q. They are marks which were put there by yourself? — A. All of them. Q. I simply want the records to show so that there will be no question. — A. Yes, sir. Mr. RusTGAKD. I now offer this list in evidence, to be marked " Exhibit 1." Mr. Hellenthal. I make an objection to the offer on the ground that it is not rebuttal and not the best evidence; and on the further ground that it is not a copy of anything. That is all. Mr. RusTGAED. I omitted to ask you about Sam E. Thomas. Is he a Hyda? A. No, sir.- He is a Thlinget. Q. Does he reside at Hydaburg? — A. Probably resides at Sulzer. Probably there for work purposes. Q. Do you know whether or not he ever resided at Hydaburg? — A. Inter- mittently. He formerly married a Hyda woman. Mr. RusTGAKD. That is all. Cross-examination by Mr. Hellenthai, : Q. Referring to the last-mentioned gentleman — Thomas — he also has aban- doned his tribal relations,? — A. Yes, sir. Q. He is living the habits of civilized life? — A. I think so. Q. Just a question with reference to all of these men: Many of them are half-breeds and mixed blood? — A. Yes, sir. Q. There are few of them who are full-blooded Indians? — A. There are quite a number of them full blooded. Q. Some are full blooded and some are mixed blood? — A. Yes, sir. Mr. Hetxenthal. That is all. Mr. RusTGAKD. That is all. It is admitted by counsel for contestee that a duplicate copy of the hereto attached notice of deposition was given, one to J. A. Hellenthal and another ta John R. Winn, in Juneau, Alaska, on Thursday, the 2d day of August. A. D. 1917. David Waggonee. Exhibit L. Registration list for the November 7, 1916, election for Delegate from Alaska^ etc., from Sulzer, Alaska : No. Name. 5181. W. H. Link. 5182. H. P. Fish. 5183. J. W. Ridmberak. 5184. Jack Spath. . 5185. Thomas Hughes. 5186. .John Wilcot. 5187. Peter Relda. 5188. Harry Nehan. 5189. K. Kuodwen. 5190. .losephine Kilpatrick. 5191. R. L. Kilpatrick. 5192. Blanche R. Wright. 5193. W. Thos. Wright. 5194. Herman West. 5195. M. E. Gould. 5196. C. G. McLeod. 5197. W. D. McLeod. No. Name. 5198. R. J. Pollock. 5199. W. Denham. 5200. Katie Nelson. 5201. Mrs. Valensolo. 5202. J. D. Wynne. 5203. Elmer Olsby. 5204. J. L. Bulkley, jr. 5205. Alex Peele. 5206. Sam. E. Thomas. 5207. Oran Kiteley. 5208. George Haldane. 5209. Peter Nathlan. 5210. Benson Skutthka. 5211. Thomas Robertson. 5212. Frank Box. 5213. William L. Moore. 5214. John Dempsey. 232 WIGKEESHAM VS. SULZEE. No. Name. 5215. .7. O. Thorpe. 5216. Frank Mullane. 5217. O. A. Emery. 5218. J. S. Brown. 5219. Paul D. Morrison. 5220. Fred Grant. 5221. J. L. Howe. 5222. A. J. Young. 5223. Jos. G. Yatensolo. 5224. Charlie Scott. 5225. IMasou Frank. 5226. Powell Charles. 5227. Thadfleus Isaacs. 5228. Matthew Scott. 5229. Jack George. 5230. David Nathlan. 5231. Boyd Nakathla. 5232. Albert Natkang. 5233. Sam Douglas. 5234. Lewis Torre. No. Name. 5235. Blike George. 5236. Frank South. 5237. Luke Frank. .5238. Fred Wallace. 5239. Alex Aiettatzie. 5240. Robert Edenshow. 5241. Hugh Kogo. 5242. A. Shellhouse. 5243. James George. 5244. David Jason. 5245. AVillie Skultka. 5246. Edwin Scott. 5247. Alex Sputin. .5248. H. M. Stantien. 5249. W. S. Wood. 52.50. Chas. A. Wood. 5251. M. E. M. Wood. 52.52. Mary M. Wynne. 5253. Arthur Barker. 5254. Gertriide Barker. United States of America, Territory of Alaska, ss: I, G. C. Winn, a notary public in and for the Territory of Alaska, duly com- missioned and sworn, hereby certify that T have in my possession and under my control the official registration and tally book for the November 7, 1916, election for Delegate from Alaska and other officers, for the precinct of Sultzer, first division. Alaska, and I further certify that the foregoing list is a true and correct list of all voters as the same appears in said registration book above mentioned. Witness my hand and official seal this 2d day of August, 1917. [SEAL.] G. C. Winn, Notary Public. Alaska. My commission expires July 22, 1921. CERTIFICATE. This is to certify that the foregoing deposition was taken upon oral ques- tions made and oral answers given, and taken in shorthand by Mrs. Pauline Burbach, under my instruction and direction, and immediately thereafter transcribed by her, and after having been so transcribed it was read and ex- amined and corrected by the witness, David Waggoner, who thereupon signed his name to said deposition. That before said deposition was taken, the said stenographer, Mrs. Pauline Burbach, was duly sworn to cori*ectly report the said testimony in shorthand and correctly transcribe the same to the best of her ability; and that the same is a true and correct statement of the deposition made by the said witness, David Waggoner, at the time and place above men- tioned. In witness whereof, I have hereunto set my hand and official seal this 6th day of August, A. D. 1917. H. B. Le Febre. 'Notary Public for Alaska. 3ry commission expires January 7, 1918. TESTIMONY FOR C0NTE8TEE. NOTICE OF TIME AND PLACE FOR TAKING DEPOSITIONS OF WITNESSES. To the Hon. James Wickersham, contestant : You are hereby notified that the testimonj^ by depositions of the follow- ing-named witness on behalf of the contestee will be taken before Frank J, Hayes, notai*y public for Alaska, at the dates and places hereinafter stated : 1. The testimony of Arthur Lang, wliose residence is Valdez, Alaska, will be taken at the office of Donohoe & Dimond, Valdez, Alaska, at 2 o'clock p. m, of July 2, 1917. 2. The testimony of Karl Armstrong, P. D. Blodgett, Cecil King, and other witnesses, whose names to contestee are unknown, all of whom reside at or near Kodiak, Alaska, will be taken at the office of the deputy United States marshal, Kodiak, Alaska, on July 8, A. D. 1917, at 2 o'clock p. m., or as soon thereafter as possible, depending upon the arrival of the steamship Admiral Evans at the said port. 3. The testimony of Ivan Derenoff, Simeon Berestofl:, Ivan Alhoon, Xenophant Gregorioff, Logan Chanun, Radion Malutin, Mafrey Agick, Tumofry Naya, Ivan GregoriofC, Gregory Yakonak, Wasele Eshnwak, John Yakonak, Alexander Lukin, Alex Knagin, sr., Nastacia Kilegman, Charles W. Pajoman, Wasele Apolon, Paul Nekasoff, Alexandra Nekrasoff, Matrona Pajoman, Michael Boskofsky, Nicholai Shangin, Sergay Sharatin, Emellian Petellin, Alexander Simeonoff, Alfred Nel- son, Martin Larsen, John P. Johansen, John J. Keegan, Louis Berg, Julius Fors- man, John Taussvauk, and other witnesses, whose names to contestee are un- known, all of whom reside at or near Afognak, Alaska, will be taken at the public school house at Afognak, Alaska, on July 9, A. D. 1917, at 2 o'clock p. m., or within one day of 24 hours after the time of the arrival of the steamship Admiral Evans at Kodiak, Alaska, upon her voyage now scheduled for arrival there on July 8, 1917. 4. The testimony of William Lowell, Mike Dolchok, Steve Sorosnikoff, Anton Dolchak, Samuel MerchurofE, Gregory Gory, Constantine Luko, Fred Cameron, J. A. Hart, S. Stoffer, Zaker Chonka, Fred Jarger, Nick SakolofE, Saverian Jakaloff, Lizzie Block, Irene Jackobson, Agnes Barnes, Mrs. George R. King. Milo Hurlburt, M. J. Doyle, R. B. Markle, and Gregory Foxy, and other wit- nesses, whose names to contestee are unknown, all of whom reside at or near Seldovia, Alaska, will be taken at the office of the deputy United States Marshal at Seldovia, Alaska, on July 14, A. D. 1917, at 2 o'clock p. m., or as soon there- after as possible, depending upon the awpival of the steamship Admiral Farragut from Kodiak upon her voyage now scheduled for arrival at Seldovia on July 14, A. D. 1917. Hereof you will take due notice. Charles A. Sulzer, Contestee. By T. J. Donohoe, Attorney for Contestee. PROOF OF service OF NOTICE OF TIME AND PLACE FOR TAKING DEPOSITIONS OF witnesses. State of Washington, County of King, ss: A. WINDT, being duly sworn, says that he is a citizen of the United States, of lawful age, and a resident of the city of Seattle, in King County, Wash,; that he knows personnlly the above-named contestant, James Wickersham; that on June 27, A. D. 1917, affiant received the foregoing notice of time and place for taking depositions in the contest above entitled, and on the same date affiant personally delivered a duplicate thereof, signed by Charles A. Sulzer, contestee, by Thomas J. Donohoe. attorney for contestee, to the said James Wickersham 233 234 WIOKEESHAM VS. SULZEE. in person, at Auburn, within King County, Wash, ; that said service was marte by delivery as aforesaid to the said Wickersham in person by this atiiant in person, at about 4.50 o'clock p. ra. of the said June 27, A. D. 1917. A. WiNDT. Subscribed and sworn to before me this 28th day of June, A. D. 1917. [seal.] R. M. Jones, Notary Public for Washington, residing at Seattle. Contestee's Exhibit 1. Fbank J. Hayes, Notaby Public. INSTEUCTIONS TO JUDGES OF ELECTION. Voters must register. — Before any voter shall receive his or her official ballot ho or she shall sign his or her name in the registration book, which signature sliall be a statement of said voter to the effect that he or she is qualified to vote. One of the judges of election shall keep said registration book. Qualifications of voters. — Section 22 of chapter 25, Session Laws of Alaska, 3915. "An act to provide official ballots for elections in the Territory of Alaska," approved April 27, 1915, prescribes the qualifications of a voter as follows : "Any person of the age of 21 years or more who is a citizen of the United States, who has lived in the Territory of Alaska one year and in the judicial division in which he or she offers to cast his or her vote 30 days immediately preceding such election, shall be entitled to vote at all elections held therein : Provided, That all idiots, insane persons, and persons who have been convicted of an infamous crime are excluded from such right and privilege : And provided further. That no person shall be deemed to have lost his residence by reason of bis absence in the civil or military service of the Territory or the United States, nor while a student at any institution of learning ; nor while kept a public charge at any poorhouse or any other asylum ; nor while confined in any public prison ; rior while engaged in navigation of the waters of this Territory, of the United States, or the high seas ; absence from the Territory or said judicial division, or city or town wherein election is held, on business, shall not affect the question of residence, provided he or she has not claimed such right elsewliere. One of the said judges shall keep said registration book, and before any voter shall re- ceive his or her official ballot he or she shall sign his or her name in said book, which signature shall be a statement of said voter to the effect that he or she is qualified to vote under this act. " Sec. 23. Any person who can qualify as a legal voter in the division in which he or she attempts or offers to vote may qualify and vote in any election precinct in such division by subscribing to the qualifications required for registration in this section. Any person who makes a false statement of his or her qualifica- tions to vote shall be punished, upon conviction, by a fine of not less than $25 nor more than $200 or by imprisonment in the Federal jail for not less than 10 days nor more than 60 days, or by both fine and imprisonment, in the discretion of the court." Election board. — The judges of election of each voting precinct shall constitute the election board for said precinct and shall supervise and have charge of the election therein. They shall secure and provide a place for holding the election and a suitable ballot box. They shall pass upon the qualification of the voter, and if he be found qualified receive and deposit his ballot in the ballot box, and shall canvass and make a return of the votes cast, as hereinafter provided. Election board to take oath. — The members of said election board in each pre- cinct, before entering upon the duties of their office, shall each severally take an oath, which shall be reduced to writing, before an oflicer qualified to administer oaths, to honestly, faithfully, and promptly perform the duties of then* positions ; and if no officer qualified to administer oaths be present or available, then any one of said duly appointed or selected judges of election may administer the necessary oath to said other two judges, and he shall afterwards in turn be sworn by one of them. Election judges to adiwmister oaths. — Each of said judges shall have authoi'ity to administer any oath to the voter necessary or proper under this act, and said judges shall have equal authority ; and in case of any question or disagreement over any matter during the course of said election, the decision of the majority of said judges shall govern. Clerks of election. — Two of the three judges of election in each voting precinct, outside of incorporated towns, ,to be selected by a majority of said judges shall also perfoorm the duties of clerks of election for that precinct ; the two judges ^' WICKEESHAM VS. SULZEB. 235 performing- the duties of clerks shall be of different political parties; it shall be the duties of the clerks at each voting precinct to make a full written record of such election held in that precinct, and each of them shall keep a correct duplicate register and enter therein the names of the voters and the fact that they have voted, or have offered to vote and were refused, and a brief statement of the reasons for said refusal. Watchers. — Each of the candidates for the office of Delegate to Congress, at- torney general, and each of the candidates for the legislature shall be entitled to one watcher at each voting precinct, who shall be permitted to be present within the place of voting at such precinct, and in some place therein where he may at all times be in full view of every act done. Such watcher shall have the right to be present at all times from the opening of the polls until the ballots are finally counted and results certified by the election board. Each watcher shall be required to present to the election board proper credentials, signed by the candidate he represents, showing him to be the duly authorized watcher for such person. Vacancies on election board; how filled. — That in case any of the judges of election selected as herein provided for any precinct shall fail to appear and qualify at the time and place designated for the election for which they shall be appointed, then, in that event, the qualified voters present may, by a majority viva voce vote, select a suitable person or persons to fill the vacancy or vacancies in said election board, and the person or persons so selected shall qualify and serve on said election board with the same powers and in the same manner as if appointed as hereinbefore provided. When polling places open and close. — That the election board herein provided for shall keep the several polling places open for the reception of votes from 8 o'clock a. m. until 7 o'clock p. m. on the day of election. The voting at said election shall be by official ballot. Ballot to be folded. — Such ballots shall be folded by the voter so as not to dis- close the vote, and by him handed to any one of the judges of election, who shall immediately, in the presence of the voter and of all the members of the election board, deposit the same, folded as aforesaid, in the ballot bos, where the same shall remain untouched until the polls are closed. At the time the ballot is so deposited the clerks of election shall each of them enter in his du- plicate register the name of the voter and the fact that he has voted. Booths to be provided at polling places. — That every polling place in the Territory shall be provided with booths or screens wherein the voter shall make his or her ballot. Provided, that not less than one both shall be furnished for each one hundred (100) votes or fractional part thereof, cast at the previous election. Official ballot to be given voter. — That when a voter enters the polling place he shall be given an official ballot by one of the election judges, with which he shall retire to the booth or screen and there mark the same for the candidates of his choice. Marred ballots. — That when a voter mars a ballot so that the legibility is destroyed, he may receive a second ballot from the judges of the election, and if necessary, a third ballot, but no more than three will be allowed, and the marred ballots must be preserved by the judges of the election and placed with the unused ballots. Judges may assist voters. — That any voter M'ho is blind or otherwise incap- able of marking his or her ballot, may demand that the judges of election assist him or her, and the judges of election shall do so. When no official ballot received. — That in any precinct where the election has been legally called and no official ballots have been received, the voters are per- mitted to write or print their ballots, but the judges of election shall in this event certify to the facts which prevented the use of the official ballots, which certificate must accompany and be made a part of the election returns. Stubs on official ballot. — At the top of the official ballot, above a perforated line are duplicate stubs bearing consecutive numbers; one of said stubs shall be retained by the election judges upon presenting the ballot to the voter ; upon the return of the voter from the voting booth, the other stub shall be torn from the ballot by the election judges and compared and retained. Voter challenged to take oath. — That any person offering to vote may be challenged by any election officer or any other person entitled to vote at the same polling place, or by any duly appointed watcher, and when so challenged, before being allowed to vote he shall make and subscribe to the following oath : "You do solemnly swear (or affirm as the case may be) that you are twenty- one (21) years of age and a citizen of the United States; that you have lived 236 WICKEESHAM VS. SULZEB. In the Territory of Alaska one year and have been a resident in the third judicial district for thirty days next preceding this election, and that you have not voted at this election." And when he has made such an affidavit, he shall be allowed to vote ; but if any person so challenged shall refuse or fail to take such oath and sign such affidavit, then his vote shall be rejected; and any person swearing falsely in any such affidavit shall be guilty of perjury and shall, upon conviction thereof, suffer punishment as is prescribed by law for persons guilty of perjury. Judges to certify result of election and forward to governor. — That the elec- tion board at each polling place, as soon as the polls are closed, shall immedi- ately publicly proceed to open the ballot box and count and canvass the votes cast, and they shall thereupon under their hands and seals, make out in duplicate a certificate of the result of said election, specifying the number of votes, in words and figures, cast for each candidate, and they shall then immediately carefully and securely seal up in one envelope one of said duplicate certificates and one of the registers of voters, all the ballots cast, and all affidavits made, and mail such envelope, with such papers inclosed, at the nearest post office by registered mail, if possible, duly addressed to the Governor of Alaska at his place of resi- dence, with the postage prepaid thereon. Duplicate certificate to be sent clerk. — The other duplicate certificate and reg- ister of votes, with the oaths of the judges of election, the judges of election shall at once seal up in an envelope addressed to the clerk of the district court for the division in which the precinct is situate, at his place of residence, with the postage thereon prepaid and deposit the same in the nearest post office, by registered mail, if possible. And the said clerk shall, as soon as he receives the said dupliciite certificate, at once make out and duly mail to the governor of Alaska a certified copy of such certificate. Judges to certify when voter is assisted. — Where an elector is incapable under the law of marking his own ballot, and he is assisted in doing so by the judges of election, said judges of election shall sign the certificates on the back and outside the " official ballot," which reads as follows : " We certify that the within ballot was marked by us for an elector incapable under the law of mark- ing his own ballot, and as directed by him." Collusion of election officers. — If any inspector or judge of any such election shall knowingly permit any elector to cast a second vote at any such election, or shall knowingly permit any person not a qualified elector to vote at any such election, such inspector or judge of election shall be guilty of a felony and be incapable of holding any public office in this Territory for five years thereafter. Officers attempting to influence voter. — If any inspector, judge, or clerk of an election shall attempt to induce, by persuasion, menace, or reward, or promise thereof, any elector to vote for any person, such inspector, judge, or clerk shall be guilty of a felony. Tampering loith ballot by officer. — If any judge, inspector, clerk, or any other officer of an election shall open or mark, by folding or otherwise, any ticket presented by such elector, at such election, or attempt to find out the names thereon, or suffer the same to be done by any other person, before such ticket is deposited in the ballot box, such judge, inspector, or clerk shall be guilty of a felony. CONTESTEE'S EXHIBIT No. 2. FRANK J. HAYES, NOTARY PUBLIC. Official ballot. (Omitted in printing.) Contestee's Exhibit No. 3. Frank ,T. Hayes, Notary Public. United States of America, Territory of Alaska, ss: Frank B. Hall, being first duly sworn according to law, on his oath deposes and says : That he is a deputy marshal in the office of L. T. Erwin, United States mar- shal for the fourth judicial division of the District of Alaska; that he knows Louis Klopsch, and has known him for several years past; that for several years last past said Louis Klopsch has been an actual resident of the town of Fairbanks, fourth judicial division. Territory of Alaska; that from about the 12th day of June, 1916, up to and including the 1st day of November, 1916, the said Louis Klopsch was the editor of the Fairbanks Times, a newspaper which was published daily, Mondays excepted, from about said 12th day of June, 1916, until on or about the 7th day of October, 1916, and said Loiiis Klopsch WICKEKSHAM VS. SULZER. 237 resided during all of said time within ^the limits of the incorporated town of Fairbanks, Alaska ; that on or about the 7th day of October, 1916, the said Fairbanks Times ceased publication, and thereafter and until about the 1st day of November, 1916, the said Louis Klopsch resided within said town and was engaged daily in said town in closing up the affairs of the Fairbanks Times Publishing Co. ; that on or about the 1st day of November, 1916, the said Louis Klopsch left said town of Fairbanks, Alaska, on one of the stages of the North- ern Commercial Co. for Chitina, Alaska. And, further, affiant saith not, Frank B. Haul. Subscribed and sworn to before me, at Fairbanks, Alaska, on this 13th day of December, A. D. 1916. [SEAi.] G. V. Ckeamek, Notary Public in and for the Territory of Alaska. My commission expires March 30, 1919. Contestee's Exhibit No. 4. Frank J. Hayes, Notary Public. Election register and tally book. (Omitted in printing.) Contestee's Exhibit No. 5 of Arthur Long's Deposition. Henry Logan. Henry Ohlson. Charles Carlsan. James Plegtrom. William Rohde. William (his x mark) Lowell. Christian Petersen. S. StofPer. Axel Michelson. Andy Johnson. Mike Dolchok. Semee Merewu. W. J. McKeon. Steve E. Sorokorikoff, G. M. Chambers. T. O. Perry. George D. Slayback. John A. Nelson. Edward Jensen. F, J. Cameron. Peter C. Garlich. Olga Holmstram. P. F. C. Bellman. Antone Dolchak. N. I. Greive. E. R. Bogart. R. B. Markle. M. J. Doyle. •Tuanita Anderson. Thomas Moore. Ole Skaar. Albert Peterson. Samuel (his x mark) MercurofC. W. M. Blake. Gregory (his x mark) Fry. Frederick Nelson. Constantin (his x mark) Lucko. Gregory (his x mark) Kalango. J. A. Hart. R. N. McFadden. Albert Osness. E. I. Ammudsen. Edward Hegner. John Aabenak. Matilda A. Greive. Zakar (his x mark) Chonkna. Fred (his x mark) Jager. Nick (his x mark) Sakoloff. James K. Hallun, Saverian (his x mark) Jakaloff. W. A. Keller. George P. Griffiths. Fred Sanpe. James Linder. Gollak Ollestad. ^ Mrs. Mary Claghorn. Mrs. Hattie Johnson. Mrs. Sallie Bowen. Milo Hulburt. Thomas Repetta. Mrs. Bogart. Mrs. Ritchin. Christian Spillum. U. S. Ritchie. Eda O. Dwyer. Albert Fillmore. F. D. Decker, Minnie Cameron. Elizabeth Herbert. Edward Carlson. G. W. Mitchell. C. B. Meyers. Lizzie (her x mark) Block. Irene Jacobson. Agnes (her x mark) Barnes. Annie Christiansen. J. Christiansen. Frank Brown. Keuben Barnes. George R. King. Mrs. George R. (her x mark) King. Jack Tansy. Edw. Husby. Barbara Husby. Lizzie Ward. 238 WICKEESHAM VS. SULZER. CONTESTEE'S EXHIBIT No. 6 OF AkTHUK KiNG'S DEPOSITION. Ivan (his x mark) Derenoff, Ernest Strickler. Simeon (liis x mark) Berestoff. Ivan (liis x mark) Alhoon. Alfoney Malutin. Xenopliont (liis x mark) GregoriofE. John Taoshank. Logan (his x mark) Chanun. Radion (his x mark) Malutin. Malfey (his x mark) Agick. Peter Ciiespenopf. Tunafey (his x mark) Naya. Julius Forsman. Martin Lansen. Peter Kauan. Ivan (his x mark) Gregorioff. Gregory (his x mark) Yakonok. Wasele (his x mark) Eshunaval. Henry Wander. Charles B. Gundersen. Michael Sussman. John (his x mark) Yakonak. W. E. Baumann. Peter Chichenoflf, jr. Alexander (his x mark) Lukin. John P. Johnansoe. Tichon Sheratine. Alexy (his x mark) Knagin, sr. John Orloff. John Naumoff. Elia Knagin. Natalia Simeonoff. Irene Nelson, Nicholai Boskosky. Nastacia (his x mark) Kiligmen. Paul Chechenoff. William Chechenoff. Alexis Chechenoff. John J. Folstad. Charles W. Pajuman. O. C. Braun. Louis Berg. Arthur Marzan. Simeon Malutin. Wasele (his x mark) Apolon. E. Petellin. Alfred Nelson. Alexander Simeonoff. Mary Petellin. Willie Leahy Abbert. Matrona Pajoman. Paul (his X mark) Nekraisoff. Senophont Malictin. Horace Samuel Abberts. Alexander (his x mark) Nekrasoff. Andrew (his x mark) Shunagan. Michael (his x mark) Boskofsky. Nick Anderson. Theodore Gregorioff. Stephen Gregorieff. Nicholai (his x mark) Shangin. Sergay Sharotin. DEPOSITION OF AETHUB LANG, Be it remembered, that pursuant to the notice hereunto annexed, and at the hour of 2 o'clock p. m., on the 2d day of July, 1917, at the office of Donohoe & Dimond, in the town of Valdez, Territory of Alaska, before me, Frank J. Hayes, a notary public in and for the Territory of Alaska, personally appeared Arthur Lang, a witness produced on behalf of Charles A. Sulzer, the above-named con- testee in the above-entitled contest now pending before the House of Representa- tives of the Congress of the United States, Sixty-fifth Congress, first session, who by me being first duly sworn to tell the truth, the whole truth, and nothing but the truth, was then and there examined and interrogated by T, J, Donohoe, attorney for the said Charles A. Sulzer, contestee, and the said contestant, James Wickersham, not being present, either in person or by attorney, said witness testified as follows : Q. State your name and residence. — ^A. Arthur Lang. I reside at Valdez, Alaska. Q. What is your official position? — A. Clerk of the district court for the Ter- ritory of Alaska, third division. Q. Were you clerk of the district court, Territory of Alaska, third division, during the entire year of 1916? — A. I was. Q. Did you, as said clerk of said district court, cause to be prepared necessary election supplies to be furnished the judges of election in the various precincts throughout the third judicial division, Territory of Alaska, for the election to be held on the 7th day of November, 1916?— A. I did. Q. What did those election supplies consist of? — ^A. Two election register and tally books and one registration book; instructions to judges of election; pay rolls ; two official envelopes with registry stamp on each, one of which envelopes was addressed to the clerk of the court, Valdez, Alaska, and the other to the governor, Juneau, Alaska ; a copy of the wet and dry law for or against the sale of intoxicating liquor in the Territory of Alaska after December 31, 1917 ; and the official bollots. Q. You speak of two official envelopes included in the election supplies, one addressed to you at Valdez, Alaska, and the other to the governor of the Terri- WICKEESHAM VS. SULZEE. 239 tory at Juneau. What was the business of these two envelopes? — A. So that one registration and tally book could be returned to me and be filed here and the other could be sent to the governor and be filed at Juneau. Q. Then these envelopes were for the judges of election to make their returns of election to the proper authorities as required by law ? — A. Yes, sir. Q. You speak of instructions to judges of election being inclosed in these supplies sent by you to the various precincts. Have you a copy of those Instructions? — A. I have. Q. Will you turn to the second page of those instructions and read that por- ■ tion referring to the question when official ballots were not received by the judges of election in time to be used at the election? — A. " That in any precinct where the election has been legally called and no official ballots have been received the voters are permitted to write or print their ballots, but the judges of election shall in this event certify to the facts which prevented the use of official ballots, which certificate must accompany and be made a part of tlve election returns." Q. Will you mark that paragraph by a red star on the copy now in your possession? Who prepared these instructions? — A. They were prepared by myself and Mr. T. P. Geraghty, my chief deputy, and were approved by Assist- ant United States Attorney W. A. Munley. Mr. DoNOHOE. I now offer the instructions to judges of election just testified to by the witness and ask that it be marked " Contestee's Exhibit No. 1 " and ■attached to and made a part of this deposition. (" Exhibit No. 1 " marked and attached hereto.) Q. That portion of your instructions to judges of election that you have just read is an exact copy of section 21 of chapter 25 of the session laws of the year 1915 of the Territory of Alaska, is it not? — A. It is. It is copied from the session laws. Q. You say you prepared, in accordance with chapter 25 of the session laws of the year 1915 of the Territory of Alaska, an official ballot to be used at the election in the third judicial division of the Territory of Alaska at the election which was held on the 7th day of November, 1916. Have you in your posses- sion at this time an exact copy of those official ballots? — A. I have. Q. I ask you to present it to the notary public before whom this deposition is being taken, have it marked " Contestee's Exhibit No. 2," and made a part of jrour deposition. (Mr. Lang presents to notary public a copy of the official ballot used at the November 7, 1916, election and asks that the same be marked and attached to and be made a part of this deposition. " Exhibit No. 2 " marked and attached hereto. ) Q. Were these election supplies, as testified to by you, sent to the various precincts throughout your division to be used at the election to be held on the 7th day of November, 1916?— A. They were. Q. How were they sent to the election precincts? — A, The supplies were put up one for each election precinct throughout the division and forwarded to the United States commissioners of each district, who placed them in the hands of the judges of election. Q. Why were they sent to the United States commissioners of each recording precinct instead of direct to the election officials? — A. The commissioners di- vided their recording districts into precincts, and we were notified how many precincts there were in each recording district ; but we did not know who the judges of election were, and for that reason we sent all of the supplies to the commissioners, to be redistributed to the different election officials. Q. You say your election register and tally book — there were two sent to each precinct? — A. Yes; two. Q. Did you inclose your letters of instructions to judges in each of these election registers and tally books? — A. I did. Q. Do you know that the judges of election in the precincts of Choggiung and Nushagak, in the Bristol Bay recording district, third division. Territory of Alaska, received the election register and tally book which had inclosed in it the instructions to judges of election, a copy of which is marked " Contestee's Exhibit No. 1," and made a part of this deposition? — A. I do. Q. How do you know? — A. Because they went out with the supplies. I re- ceived the election register and tally book back in this office again after the ■election. Q. Have you the election register and tally book from the voting precinct of Sour Dough in the Copper Center recording precinct, third division, Terri- 240 WICKERSHAM VS. SULZER. tory of Alaska, tliat was returned to you by the officials of election pursuant to the provisions of law? — A. I have. Q. Will you read the names of the voters at that precinct as shown upon the register and tally book? — A. Mrs. N. Yaeger, Wihd Miller, F. A. Lamson, George L. Markham, and Louis Klopsch. Q. What was the total vote case in the said precinct of Sour Dough for Dele- gate to Congress in the election held there on the 7th day of November, 1916, as shown by the election register and tally book now on file in your office? — A. Five. Q. For whom were these five votes cast for Delegate to Congress? — A. For James Wickersham. Q. Did they all subscribe to the registration book provided by chapter 25 of the Session Laws of Alaska for the year 1915? — A. They did. Q. What requirements did they subscribe to in order to entitle them to vote at said election ? — A. " United States of America, Territory of Alaska, Third Division, ss : The undersigned hereby states that he or she is a citizen of the United States of the age of 21 years or more ; has lived in the Territory of Alaska one year and in the third division 30 days immediately proceeding the November 7, 1916, election." Q. Do you know whether Louis Klopsch, who voted for James Wickersham for Delegate to Congress at the Sour Dough precinct at the election held there on the 7th day of November, 1916, was a resident of the third division of the Territory of Alaska for 30 days next proceeding the date at which he voted? — A. He was not. Q. How do you know? — A. Because I have in my possession the affidavit of one Frank B. Hall, a deputy marshal for the fourth division of the Terri- tory of Alaska, in which he states that Louis Klopsch was a resident of the fourth division of the Tei-ritory of Alaska up to, on, or about the 1st day of November, 1916. Mr. DoNOHOE. I ask you to present that affidavit to the notary public before whom this deposition is taken and have same marked " Contestee's Exhibit No. 3 " and attached to and be made a part of this deposition. (" Ex- hibit No. 3" marked and attached hereto.) Q. Do you know where Louis Klopsch is at this time? — A. I do not. Q. What is your information as to how he happened to be at the Sour Dough precinct on election day? — A. I was informed he was coming' from Fairbanks on his way to the States. Q. And he has not returned from the States since he went out at that time? — A. Not to my knowledge. Q. You have no knowledge as to where his present address is? — A. I have not. Q. I call your attention to the election register and tally book from the Cor- dova precinct in the third division of the Territory of Alaska, used in the election for Delegate to Congress on the 7th day of November, 1916, and ask you if one H. DeWeiss voted at that election? — A. He did; his name appears on the tally book. Q. Was he at that time a citizen of the United States? — A. He was not. Q. How do you know that he was not a citizen of the United States at the time he voted at that election? — A. He was naturalized on the 7th day of De- cember, 1916. Q. Do the records of your office show that he was naturalized in the district court for the Territory of Alaska, of which court you are clerk, on the 7th day of December, 1916? — ^A. Yes ; they do. Q. Referring again to the election register and the tally book of the Sour Dough precinct, I will ask you if the judges of election at that precinct took the oath of office required by law before they entered upon the duties of their office as such judges of election? — A. They did not. Q. The vote in the precinct of Sour Dough gave Wickersham five and Sulzer none for Delegate to Congress, did it not? — A. It did. Q. Going back to the Cordova precinct, where H. DeWeiss voted, what was the vote on Delegate to Congress at that precinct? — A. According to the returns Lena Morrow Lewis received 34, Charles A. Sulzer received 157, and James Wickersham received 201. Q. I call your attention to the election register and tally book returned to your office from the election judges of the election held on November 7, 1916, at Nizina, Alaska, and ask you if the certificate required by law to be filed as WICKERSHAM VS. SULZEE. 241 stating that the number of votes cast at said election was filled out in the regis- ter and tally book? — A. It was not. Q. What was the respective vote cast for Charles A. Sulzer and James Wick- ersham as Delegate to Congress in this precinct? — A. Sulzer reecived 2 votes and Wickersham received 7 votes. Q. I call your attention to the election register and tally book for the Seward precinct, third judicial division of the Territory of Alaska, returned to you by the judges of election at the election held on November 7, 1916, and ask you if the certificate i-equired by law stating the number of votes cast at this election was signed by the judges and clerks of election? — A. It was not. Q. What was the respective vote in this precinct for Charles A. Sulzer and James Wickersham for Delegate to Congress? — A. Sulzer received 183 and Wickersham received 258. Q. I call your attention to the election register and tally book returned to your office by the election judges of the Seldovia precinct in the third division. Territory of Alaska, for the election held November 7, 1916, and ask you if the certificate required by law stating the number of votes cast at this election has been filled out? — A. It has not. Q. What was the respective vote in this precinct for Charles A. Sulzer and James Wickersham for Delegate to Congress? — A. Sulzer 13 and Wicker- sham 55. Q. I call your attention to the election register and tally book from the Bonanza voting precinct, White River precinct, third division, Territory of Alaska, for the election held on November 7, 1916. and will ask you if the Judges of election in this precinct at said election took the oath of office as re- quired by law before entering upon their duties as such officials? — A. They did not. Q. What was the respective vote for Charles A. Sulzer and James Wicker- sham for Delegate to Congress in this precinct at said election? — A. Sulzer received 4 and Wickersham received 8. Q. I call your attention to the election register and tally book from the Hope voting precinct in the Kenia recording district, third judicial division, Terrtory of Alaska, for the election held November 7, 1916, and ask you if the judges of election in this precinct took the oath of office required by law before entering upon the discharge of their duties? — A. They did not. Q. What was the respective vote for (I'harles A. Sulzer and .Tames Wicker- sham for Delegate to Congress at the election held in this precinct on the date mentioned? — A. Sulzer received 14, and Wickersham received 21. Q. Have you in your possession an election register and tally book prepared by you for the election held on November 7, 1916, for the Uyak precinct, Kodiak recording district, third division. Territory of Alaska, which contains the in- structions to judges of election, the oath of office, and the various certificates, and also a copy of chapter 7 of the session laws of the Legislature of the Terri- tory of Alaska for the year 1915, which chapter provides for an expression of the' people of the Territory of Alaska as to the sale of intoxicating liquor? — A, I have. Mr. DoNOHOE. I ask you to present this register and tally book to the notary public before whom this deposition is being taken, have it marked " Con- testee's Exhibit No. 4," and be made a part of this deposition. (" Exhibit No. 4 " marked and attached hereto.) Q. How did you come to have Contestee's Exhibit No. 4 at this time? — A. S. Irvine Stone, United States commissioner for the Kodiak recording precinct, third division. Territory of Alaska, informed me that he had established a pre- cinct at Uyak. and all supplies were forwarded to him to be sent to the judges of election at the Uyak precinct. He later returned the Uyak precinct supplies to me with the information that shortly after he informed me he was going to select a voting precinct at Uyak he learned that there was only a watchman at that place who was in charge of the cannery there; he therefore canceled the precinct, and no election was held there. Q. Now, with the exception of the official ballot, of which " Contestee's Exhibit No. 2 " is an exact copy, this " Exhibit No. 4 " is the same as the rest of the supplies you sent to the various other precincts in your judicial division? — A. It is. ' ■ Q. Have you in your possession the official register kept by the election board of the voters at the election held at Seldovia on the 7th day of November. 1916?— A. I have. 13289—17 16 242 WICKEESHAM VS. SULZER. Q. Does that register show that a number of those voters signed the register by maliing a cross? — A. It does. Q. Have you caused a pliotograph to be made of the register showing the sig- natures of the voters? — A. I have. Mr. DoNOHOE. I now hand you a pliotographed list of names and will ask you if that is the photograph of the register of the voters of the Seldovia precinct at the election held on the Tth day of November, 1916? — A. It is. Mr. DoNOHOE. We offer this photograph in evidence and ask that it be marked " Contestee's Exhibit No. .5" of Arthur Lang's deposition. (Exhibit No. 5 received and marked accordingly.) Q. Have you in your posession the oflicial register kept by the election board of the voters at the election held at Afognak on the Tth day of November, 1916?— A. I have. Q. Does that register show that a number of those voters signed the register by making a cross? — A. It does. Q. Have you caused a photograph to be made of the register showing the signatures of the voters? — A. I have. Q. I now hand you a photographed list of names and will ask you if that is the photograph of the register of the voters of the Afognak precinct at the election held on the Tth day of November, 1916? — A. It is. Mr. DoNOHOE. We offer this photograph in evidence and ask that it be marked "Contestee's Exhibit No. 6" of Arthur Lang's deposition. (Exhibit No. 6 re- ceived and marked accordingly.) Akthue Lang. Subscribed and sworn to before me this 3d day of July, 191T. [seat..] Frank J. Hayes, Notary Public for Alaska. iNIy conuuission expires May 19, 1921. certificate of notary. United States of America, Territory of Alaska, Third Division, ss.: I, Frank J. Hayes, a notary public in and for the Territory of Alaska, duly commissioned and sworn, residing at ^'aldez, Alaska, do hereby certify that pursuant to the notice hereinbefore set forth served on contestant James Wickersbam at Aulmrn, King County, State of Washington, on the 2Tth day of June, 191T, personally appeared liefore me at the hour of 2 o'clock p. m. on the 2d day of July, 191T, at the law office of Donohoe & Dimond, in Valdez, Ter- ritory of Alaska, Arthur Lang, a witness on behalf of Charles A. Sulzer. coii- testee ; that said witness was by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and then and there gave his deposition as hereinbefore set fortli upon the oral interrogatories propounded to him by T. J. Donohoe, attorney for Charles A. Sulzer, contestee, and in the taking of said deposition the several exhibits attached to the same were thereupon duly intro- duced in evidence. That contestant, James Wickersham, did not appear either in person or by attorney. That said deposition after being taken in shorthand was typev.-ritten by me. and after l)eing so typewritten it was read to said witness, corrected, and then by him subscribed as being true in all respects and as being the testimony given by him. In witness whereof I have hereunto set my hand and affixed my notarial seal this 3d day of July, 191T. [seal.] Frank J. Hayes, Notary Public in and for the Territory of Alaska. ]My commission expires May 19, 1921. stipulation. Whereas Charles A. Sulzer, contestee, served upon James Wickersham, con- testant, on the 2Tth day of June, 191T, at Seattle, Wash., a notice of his inten- tion to take depositions at Kodiak. Alaska, in support of his answer to con- testant's petition on the Sth day of July, 191T ; and Whereas John Rustgard, attorney for James Wickersham, contestant, and T. J. Donohoe, attorney for Charles A. Sulzer, contestee, arrived at Kodiak on the 6th day of July, 191T, for the purpose of taking said depositions. WIGKERSHAM VS. SULZER. 243 Now, therefore, for the purpose of facilitating the taking of said depositions it is hereby stipulated and agreed by and between the parties to the above- entitled contest, by and through their respective attorneys, that the depositions of witnesses on behalf of Cliarles A. Sulzer, contestee, may be taken at Kodiak on the 7th day of July, 1917, by giving the said John Rustgard, attorney for the said James Wickersham, contestant, one hour's notice of the time and place where said depositions will be taken. Dated at Kodiak, Alaska, this 7th day of July, 1917. John Rustgard, Attonieij for James Wickersham, Contestant. T. J. DONOHOE, Attorney for Cliarles A. Sulzer, Contestee. DEPOSITIONS OF ERN.ST STEICKLER, FATHER KASHEVAROFF, CECIL KING, AND MARTIN LAESEN. Be it remembered that pursuant to the notice hereunto annexed and the stipulation this day entered into between John Rustgard, the duly and regularly accredited attorney of James Wickersham, contestant, and T. J. Donohoe, the duly and regularly accredited attorney of Charles A. Sulzer, coutestee, at the hour of 2 o'clock in the afternoon of the 7th day of July, 1917, at the office of the deputy United States marshal at the town of Kodiak, third judicial division. Territory of Alaska, before me, Frank J. Hayes, a notary public in and for the Territory of Alaska, personally appeared Cecil King, Ernest Strickler, Father N. P. KashevarofC, and Martin Larsen, witnesses produced on behalf of Charles A. Sulzer, the above-named contestee in the above-entitled contest now pending before the House of Representatives of the Congress of the United States, Sixty- fifth Congress, first session. Eacli, of said witnesses were by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and were then and there examined and interrogated by T. J. Donohoe, attorney for the said Charles A. Sulzer, contestee, and by John Rustgard, attorney for James Wicl:ersham, contestant, and said witnesses testified as follows : TESTIMONY OF ERNEST STEICKLER. Direct examination bj' Mr. Donohoe • Q. State your name. — A. Ernest Strickler. Q. How old are you? — A. I was born in February, 1869. Q. Were you in Afognak, Alaska, on election day, November 7, 1916? — A. Yes. Q. You were watchman for Judge Wickersham in that election? — A. I was. Q. Were you in about the polls all day? (Objection of Mr. Rustgard. Mr. Rustgard objects for reason that Mr. Strick- ler's name has not been given as one of the witnesses to be examined in the contest at this time.) Statement by Mr. Donohoe. The contestee desires to state that owing to the great distance between Valdez and Kodiak and Afognak it was impossible for the coutestee's attorney to know the names of all the witnesses whose testi- mony he would desire to take at the time the notice of the taking of these depo- sitions was served upon James Wickersham in the State of Washington, but the notice did provide for several witnesses whose testimony was to be taken at Kodfak, and also stated such other witnesses wliose testimony might lie deemed important and wbose names were at this time unknown to contestee. It is there- fore under this clause that contestee at this time desires to take the deposition of Mr. Strickler. A. Yes ; I was there all day. Q. I will ask you if you saw a man vote by the name of Ivan Alhoon? — A. Yes, sir ; I did. Q. Do you remember whether iMatfrey Agik voted? — A. Yes. sir; he did. Q. Did you see Wasele Apolon vote? — A. Yes, sir; I did. Q. Did you see Michael Boskofsky vote? — A. Yes, sir; I did. Q. Did you see Logan Changun vote? — A. Yes, sir; I did. Q. Did you see Ivan Derenoff vote? — A. Yes, sir; he voted, I think. Q. Did you see Wasele Eshnwalv vote? — A. I don't know, as I never .heard of Iiim before by that time. Oh, yes ; I do, too, remember him now. He voted. Q. Did you see Xenophant Gregory vote? — A. Yes ; I saw him vote. Q. Did you see Ivan Gregorioff vote? — A. Yes; he voted. 244 WICKEESHAM VS. SULZER. Q. Did you see Peter Kewan vote? — A. Yes; he voted. Q. Did you see Nastacia Kilegmau vote? — A. Yes; she voted. Q. Did you see Tumofrey Naya vote? — A. Yes; he voted. Q. Did you see Paul Nelvrasoft" vote? — A. Yes ; he voted. Q. Did you see Alexander Nekrasoff vote? — A. I don't remember. He might have been there, but I don't remember. Q. Did you see Andrew Shunagan vote? — A. I don't remember. Q. Did you see Nicholi Shunagan vote? — A. I don't remember. Very likely he did. Q. Did you see John Taushwak vote? — A. Yes; he voted. Q. Did you see John Yakanak vote? — A. Yes; he voted. Q. Did you see Gregorie Yakanak vote? — A. Yes; he voted. Q. Did these peoiale whose names you have just testified to as voting at the election held at Afognak on the 7th day of November, 1916, reside in the Aleut village of Afognak? — A. Yes; some of them resided in the Aleut village and some of them resided in Creole Town. Q. Which ones of them reside in Creole Town? — A. Derenoff, Michael Bos- kofsky, Paul Nekrasoff. Q. The others reside in the Aleut town? — A. Yes, sir; they do. Q. You are well acquainted with those people in Afognak? — A. Yes; I am. Q. How long have you resided there? — A. Since the fall of 1904. Q. Have the Aleuts of Afognak a chief? — ^A. They elect a chief to attend to their local business. The Creoles also have a chief to keep order and to settle all disputes which arise among them. Q. Do you know how these Aleuts succeeded in having their ballots marked at the election held on November 7, 1916? — A. Yes, sir; the election board marked a good many of them. Q. Did you mark any? — A. None at all. Q. Which ones of the election board marked them? — A. Alex Simenoff marked some and E. Petellin also marked some. Q. Who urged these Aleuts to vote?— A. I don't know. Q. Who went after them? — A. I don't know. Q. You had no conversation with them in advance? — A. No. Q. Do you know of anyone who did talk with them in advance on the election? — A. I do not. Q. Did you see anybody mark any of the ballots of these Aleuts other than the members of the election board? (Objection of Mr. Rustgard. Mr. Rustgard objects to the examination of this character because there is no charge in the answer of contestee that any bal- lots were improperly or irregularly marked at the Afognak precinct or that any ballot was voted that was illegally marked.) A. I think John Taushwak marked some. Q. He lives in the Aleut village? — A. Yes, sir. Q. Did he bring up to the election polls a number of the Aleuts? — A. No. Q. Did he go into the booths and mark these ballots for a number that could not read or write? — A. Y^es ; three or four. Q. He was not a member of the election board ? — A. No. Q. Who was he working for on election day in the Delegate election? — A. I don't know. (Objection of Mr. Rustgard. Mr. Rustgard objects on the same ground as on which his former objection is based ; that is, there is no charge in ans,wer of contestee of any person other than the judges or the voters marked the ballot, nor is there any complaint made in answer of any character that any ballot was illegally marked or that any person was illegally admitted to the voting booth to mark the ballot or that any ballot was deposited in the ballot box which was illegally marked.) Q. What is the distance from Kodiak to Afognak? I mean by the ordinary course of travel? — A. I believe that the mail contract calls for 24 or 26 miles. Q. You travel by water, then? — A. Yes. Q. How long have you resided in Alaska? — A. Since 1896. Q. Where were you born? — A. In Switzerland. Q. When did you come to America? — A. In 1891. Q. Are you a naturalized citizen?— A. I am. Q. Where did you take out your papers? — A. In Valdez. Q. You took your last papers out there? — A. Yes. Q. When did you take them out?— A. In 1909; October. Q. Who was the judge who presided at that time? — ^A. Judge Overfleld. WICKEESHAM VS. SULZEE. 245 Q. Is it not a fact that you had a conversation with John Taushwak pre- vious to the election in which it was agreed between you and Taushwak that Taushwak was to bring these Aleuts up from the village to vote them on elec- tion day? — A. No. Q. You had no conversation with John Taushwak about the election? — A. No. Q. Or with any other person? — A. No; most of them talk either Russian or Aleut, and I didn't converse with them. Q. Who appointed you as Wickersham's watcher at that election? — A. Wicker- sham. Q. Are you acquainted with John J. Falstad? — A. I am. Q. You nor Falstad have ever had any conversation with John Tausliwak about voting the Aleuts at this election held November 7, 1916? — A. No, sir; not to my knowledge. Q. Falstad was working for Wickersham in the election, was he not? — A. I don't know. Q. Did he ever say anything to you? — A. No. Q. John Falstad is the man who was convicted of election fraud in the Afognak Delegate election in the year 1912, was he not? (Objection by Mr. Rustgard. Mr. Rustgard objects on the ground that the evidence asked for is not the best evidence, and said evidence is purely hear- say.) Statement by Mr. Donohoe. The purpose of this question is simply to identify the man who was convicted for election frauds in the year 1912 for Delegate. A. Yes, sir. Q. Were you a witness at that trial? — A. Yes, sir. Q. The election board at Afognak in that year 1912, in the Delegate election, voted a great number of Aleuts at the Afognak precinct who were not present that day? (Objection by Mr. Rustgaed. Mr. Rustgard objects to this as immaterial and irrelevant and having no bearing on the issues involved in this case, and having no bearing upon any charge set up in the answer of contestee. ) A. I do't know. Q. You were a witness for Falstad at the trial in which he was convicted and heard the testimony? — A. Yes, sir. Q. Do you now say that you didn't know he was charged with voting a number of Aleuts who were not present at the election? — A. I only heard the testimony I gave myself. I wasn't allowed in the court room only when I was called as a witness. Cross-examination by Mr. Rustgaed : Q. How far is it between what you call the Aleut village and Creole village? — A. It is really a continuation of the two places. It is a part of the waterfront. It must be a little better than a mile and a half from one end of the town to the other. Q. And the two towns then really run into one? — A. Yes. Q. Most of the Aleuts live toward the one end of the town and the most of the Creoles live toward the other end? — A. Yes. Q. Do you have a school district organized at Afognak? — A. Yes. Q. You have what is known as a territorial school district? — A. Yes. Q. Do you have a school election each year? — A. Yes. Q. In those school elections do all the people who live there, both Creoles and Aleuts, take part and vote? — A. Yes, sir. (Objection by Mr. Donohoe. Mr. Donohoe objects that this question is im- material and irrelevant, for the reason that the qualifications for voters in the school elections are not the same qualifications for voters for Delegate to Con- gress for this reason : Only American citizens are entitled to vote at an election for Delegate to Congress, while in a school election this qualification is not re- quired. ) Q. Did you ever hear the right of any of these people, which you have referred, to vote questions? — A. No, sir; except some since this contest was started. Q. Prior to the institution of this contest was the right of the Creoles and Aleuts alike to vote ever questioned? — A. No ; not to my knowledge. Q. Have you been present at Afognak at any Delegate elections before? — A. Yes ; at two or three. Q. In those Delegate elections the Aleuts and Creoles alike voted? (Objection by Mr. Donohoe. Mr. Donohoe objects that the cross-examination is irrelevant and incompetent, unless the testimony is confined to the election held on the 7th day of November, 1916.) 246 WICKERSHAM VS. STJLZER. A. Yes, sir. Q. Who were the judges of election at Afognak on November 7, 1916? — A. Emellian Petellin, Alex Simenoff. and Alfred Nelson. Q. All three of these judges were Creoles? — A. Yes, sir. Q. Did you notice that Alex Simenoff distributed Sulzer ballots in the elec- tion booth? — A. He distributed them before the election all over town. Q. Did he talk for Sulzer around town? — A. I do not know. Q. Do you know whom he represented or for whom he voted for Delegate at the election? — A. I do not. Probably Sulzer. He distributed Sulzer ballots, and he, as judge of election, helped mark the ballots for those who could not mark them. Q. He marked some? — A. Yes; he marked some. Q. Was he present when ballots were marked? — A. Yes. sir. Q. Did you personally see the ballots marked? — A. I did not. Q. You mean you saw the judges mark them, but don't know how they marked them? — A. No. Q. Was anyone allowed to see them marked except the party who voted and the judges of election? — A. No. They were not supposed to be. Q. Did you see anybody excluded from the election polls ou that day? — A. Yes, sir ; two to my knowledge. Q. Who were these men? — A. Two white men. Q. For what reason? — A. They were not citizens, only had intention papers. Q. Was any question asked these two people who were excluded as to how they intended to vote? — A. No. Q. Did they say who they intended to vote for? — A. No. Q. Was there any discussion on that subject? — A. Not that I heard of. Q. Did you ever hear that there Avas any discussion at all on the subject?— A. None whatever. Q. How. large is the population of Afognak? — A. Altogether, children and all, somewheres around 400. I have never seen the census. Q. Is it as large a town as Kodiak? — A. No; it don't have quite as many children. Q. How do the people live there? — A. Fishing, hunting, and some trapping; whatever they can do to make a dollar. Q. The Creoles, Whites, and Aleuts are now living in the same manner? — A. Yes. Q. They all work for a living? — A. Yes. Q. Do they all associate with one another in the town? — A. Oh, pretty well. Q. When you have a dance do they mix? — A. Yes. Q. They draw no color line? — A. is^o. Q. These that you refer to as Aleut speak two languages, Russian and Aleut? — A. Yes. Some of the younger ones speak English. The Creoles speak Russian, Aleut, and English. Some of the older Creoles, however, do not speak any English, only a few words. Q. And they all dress alike? — A. Yes. Q. They all live alike?— A. Yes. Q. They all live in the same style and manner as white people? — A. Yes; similar. Q. They all live in frame houses? — A. Mostly all in log houses. Q. They all cook on stoves? — A. Yes. Q. Then they have houses the same as white people? — A. Yes. Q. Dress the sa'me as white people? — A. Yes. Q. Where do they get their clothes? — A. Buy them at the stores, the same as anybody else. They buy the goods with money which they earn themselves just the same as anybody else. Q. Then they buy the goods with money? — A. They certainly do. They don't get their money by charity. Q. You said something about chiefs, both Creoles and Aleuts. Do they elect their chiefs annually? — A. They elect them every year — sometimes every two or three years. Q. Do you have any town government in Afognak the same as in the States? — A. No ; it is npt an incorporated town. Q. What is the business of the chief? — A. The same as the mayor of the town or town council in other places. They elect him to keep order. Q. You have no deputy marshal there? — A. No. Q. Have you a court there? — A. No. WICKEESHAM VS. SULZEE. 247 Redirect examination by Mr. Donohoe : Q. Who is the chief of the Aleuts? — A. Gregori Yal^anak. Q. What was he elected? — A. I don't remember; it was some few years back. Q. Who is chief of the Creoles? — A. I do not know who is chief tliere now. Q. Do you know whether the Creoles have a chief now? — A. I do not know whether there is a chief now. I know there was a Creole chief before I left. I have never inquired. Q. There is a marked distinction maintained at Afognak between the Aleuts and Creoles and each have their own chief? — A. Yes. sir. Q. The members of the Aleut organization obey the commands of their chief? — A. I suppose so. Q. How many Aleuts do yovT, roughly, say there is on Afognak Island and in the Aleut villages of men and women who are 21 years of age and over? — A. I don't know. Q. They all voted at the November, 1916. Delegate election? — A. I guess that about all of them voted. Most of them are married. Q. Afognak Island and the waters surrounding it are in a Government reserve for natives, is it not? — A. Yes, sir; for both Creoles and Aleuts. A white man is not permitted to fish there unless he is married to a native. Q. When was that reservation created? — A. I do not know; it was before my time ; I mean liefore I came to Alaska. Q. You know now that the island of Afognak and the waters surrounding it is made a reservation for the Alaskan natives for fishing? (Objection by ^Ir. Rustgard. Mr. Rustgard objects to this because it is only hearsay evidence of the records of the establishment of a reservation : the objection and the purpose of the same may be proven by the public records.) A. It is only since 1912 that the island has been open for natives for fishing for commercial purposes. Q. Since 1912, then, the natives and Aleuts have been permitted to fish in these waters for commercial purposes, then? — A. Yes, sir. Q. But a white man can not fish there unless he is married to a native? — A. No ; he can not. Q. Are white men permitted to live on the island unless married? — A. Yes, sir. Q. How many white men did you say were living in Afognak on the 7th day of November. 1916. — A. About a dozen. Q. Out of a population of about 400 people living on Afognak Island and in the town of Afognak on the date of the last election there were about a dozen of them white people then ? — A. Yes ; between a dozen and 15. Ernest- Steicklee. Subscribed and sworn to before me this 7th day of July, 1917. [SEAJL.] Feank J. Hayes, Notary Public for Alaska. My commission expires May 19, 1917. TESTIMONY OF FATHER N. P. KASHEVAROF. Direct examination by T. .7. Donohoe : Q. State your name. — A. N. P. Kashevarof. Q. What is your age? — A. I am 56 years old. Q. You reside at Kodiak? — ^A. Yes, sir. Q. HoAV long have you resided at Kodiak? — A. I was born here. Q. You are the parish priest of the Russian or Greek Catholic Church for the Kodiak parish? — A. Yes. Q. How long have you been priest? — A. Since 1905. Q. Was Afognak Island and the town of Afognak formerly in your parish? — A. Yes, sir. Q. When was it created into a separate parish? — A. In 1896. Q. Is it not a fact that nearly all of the natives, Aleuts and Creoles, in the vicinity of Kodiak, and especially in the Afognak precinct, are members of your church? — A. Yes, sir. Q. Has your church kept a record of the baptisms and christenings of the members of your church for some time back? — A. Yes, sir. Q. It is claimed that there were certain parties who voted at the election held on the 7th day of November, 1916, at which a Delegate to Congress was voted 248 WICKEESHAM VS. SULZER. for, at Afognak especially, who were Aleuts or Alaska natives. I will ask you to turn to your church record and state the nationality of the names I mention to you; I will also ask you, Father Kashevarof, what name do you call the book by from which you are about to read? — A. It is a church record, giving age and sex of the congregation ; in fact, it is a book of statistics, a record of families. The book shows either they are Aleut or Creoles or Russian. Q. What nationality is Ivan Algoon? — A. He is an Aleut. Q. What nationality is Mafrey Agick? — A. He is an Aleut. Q. Where does he reside? — A. At Afognak. Q. What nationality is Wasele Apolon? — A. He is an Aleut and resides at Afognak. Q. What nationality is Simeon Berestoff ? — A. He is a Creole and resides at Afognak. Q. What nationality is Michael Boskofsky? — A. He is an Aleut; he has been adopted and raised by Creoles. Q. Where does he reside? — A. At Afognak. Q. What nationality is Logan Chanin? — A. He is an Aleut and resides at Afognak. Q. What nationality is Ivan Derenoff? — A. He appears in the book as a Creole. I know him to be an Aleut. He resides at Afognak. Q. What nationality in Wasele Eshnwak? — A. He is an Aleut and resides at Afognak. Q. What nationality is Peter Kewan? — A. He is an Aleut and resides at Afognak. Q. What nationality is Nastacia Kilegman? — A. She is an Aleut and resides at Afognak. Q. What nationality is Tumofey Naya? — A. He is an Aleut and resides at Afognak. Q. What nationality is Andrew .Shangin? — A. He is a Creole and resides at Afognak. Q. What nationality is John Taushwak? — A. He is an Aleut and resides at Afognak. Q. What nationality is John Yakanak? — A. He is an Aleut and resides at Afognak. Q. What nationality is Gregori Yakanak? — A. He is an Aleut and resides at Afognak. Q. Do you know whether the Aleuts residing in the Aleut village at Afognak have a chief? — A. They do. Q. What is the name of their chief? — A. Gregori Yakanak. Q. Do they live there in tribal relations — that is, does the chief have control of them? — A. The chief acts as their representative in any needs that they may have for him, especially when they are in need or destitute. When the fur laws have been passed, they look to him to advise them when they can hunt and when the season is opened and when it is closed. Q. Now, do all the members of the tribe of Aleuts obey their cliief? — A. Yes. sir. Q. That has been the ease for many years gone by, has it not? — A. It has. Q. TJiey are living now in the same tribal relations as they did 25 years ago? — A. Yes; only a good deal better now. Q. So far as their obeying the chief it is the same now as then and always has been? — A. Yes, sir. Q. You know that most of these parties whose names have 1)een testified to by you as ))eing Aleuts voted at the election held last November 7, 1916? — A. Yes, sir. Q. Aside from your church records you know that they are Aleuts? — A. Yes, sir. Q. By Aleuts you mean tlie aboriginal race in Alaska and their descendants, do you not? — A. Yes, sir. Q. How long have you been connected with the church? — A. I have been as- sistant priest here since 1875, and the Afognak church was in my parish. Q. What do you mean by Creoles? — A. The mixed blood, part Russian or part white. Cross-examination by Mr. Rustgaed : Q. You are of Russian stock yourself? — A. No; I have some native blood in me. My father was a Creole. My grandfather and great grandfather were pure Russians, but my grandmother was of mixed blood. WICKEESHAM VS. SULZEE, 249 Q. You speak the Russian language, too; cTo you not? — A. I do. Q. Also the Aleut language? — A. Yes, sir. Q. How long have you been a priest of the Greek-Russian Church — A. I have 'been assistant priest since 1875 and v/as a priest from December, 1895. Q. The Russian Church here in Kodlak is the oldest church in Alaska, is it not? — A. Yes, sir. Q. How far back do the church records of your parish run? — A. Back to 1825. Q. This is the oldest Russian settlement in Alaska, is it not? — A. Yes, sir; It is. Q. You know, as a matter of history, that all the natives on and about Ko- dlak and Afognak Islands were Christianized a century or more ago? — A. Yes. sir. Q. Since that time they have been baptized into the Russian Church? — A. Yes, sir. Q. Now. with these Aleuts and Creoles to which you have just referred, have not they, their parents, and grandparents been members of the Russian Greek- Catholic Church? — A. Yes, sir. Q. They or their ancestors were members of the Russian Church at the time Alaska was ceded to the United States? — A. Yes, sir. Q. These services which they conduct in the church, are they conducted in the Russian language? — A. They are conducted in what we call the Slavonian Church language. Q. Is that the language that is spoken by the Russians here also? — A. Yes, sir. Q. Is that the official language of Russia? — A. No; this is what is called the Slavonian language, it is not the official Russian language. Q. All of these Aleuts who attend your church speak and understand Rus- sian? — A. Few of them.* Q. Do the Creoles understand and speak the Russian language? — A. They do. Q. You referred to the Chief Gregori Yakanak, is he a Creole? — A. No; he is a pure Aleut. Q. Do you know who his father and mother were? — A. Yes, sir; but I can't remember their names. Q. How old a man is he? — A. He was 27 years old in 1890. Q. Does he speak Russian? — A. Yes, sir ; but not very much. Q. Does he attend your services? — A. Yes, sir. Q. When Avas he elected chief? — A. I can't tell, because it is not in my parish. Q. They change chiefs sometimes then? — A. Yes; when they don't like one chief they elect a new one. Q. What is the business of the chief? — A. The business of the chief is to keep them posted on the laws of the country, to tell them when the game season is open and closed, to find out when they are allowed to hunt, and help them when needed. Q. He has no authority over them otherwise? — A. No. Q. He is not a king over them? — A. No. Q. He is like a lawyer for them? — A. Yes. Q. Do the Creoles sometimes elect somebody to act as lawyers for them? — A. They do in Afognak. Q. Who is acting as their lawyer in Afognak? — A. Last year it was a man named Nicoli Sheratin. Q. Do you know who is acting' as the lawyer for the Creoles at Afognak now? — A. No ; I do not. Q, Do they pay their chief or lawyer anything? — A. No. Q. He does the work for the honor there is in it then? — ^A. Yes, sir. Q. Father Kashevaroff did you ever hear the rights of these people as Ameri- can citizens questioned? — A. Of the Creoles, yes, sir. Q. Didn't you always understand that they had the same rights as Ameri- can citizens? You instructed them that they had the right to vote, Aleuts and Creoles alike. — A. I knew they had the right to vote at the school elections, and advised them to vote. Q. Did you not also advise them to vote at the Delegate election? — A. No. I didn't advise the Aleuts to vote at the Delegate election. Q. Do you mean to say that you told the Aleuts not to vote at the Delegate election? — A. I didn't tell them a thing about it. Q. You did not tell the Aleuts either to vote or not to vote?— A. There wasn't any Aleiits around here and I wasn't in Afognak on election day. Q. How long since you were in Afognak? — A. I was priest there for four and one-half years. 250 WICKEESHAM VS. SULZEK. Q. And you have never been there since? — A. I was there last year during the spring months, because there was no priest there. Q. When was this?— A. In- March. 1916. Q. Is tliat tlie last time you were in Afognak? — A. I was there in July, 1916. Q. You were there after July, 1916?— A. No. Q. Have you been in Afognak since the month of July. 1916? — A. No. Q. Have you been to Ouzinki lately? — A. In October, 1916. Q. At the time you were in Ouzinki in October, 1916, did you talk politics with your parishoners? (Objection by Mr. Donohoe. ]\Ir. Donohoe objects on the ground that it is not proper cross-examination and on the further ground that there is no con- test regarding the vote at Ouzinki and the contestant is liy this method seeking to establish evidence of his case at a date after the expiration of the time for his taking testimony.) A. I was there on marriage business. I didn't call there to talk politics. Q. Did you at any time advise the Aleuts and Creoles at Ouzinki to vote for Sulzer? (Objection by Mr. Donohoe. Mr. Donohoe objects on same ground as above stated.) A. I told them I didn't know anything about Sulzer nor about Wickersham. Q. Did you tell them who to vote for? (Objection by Mr. Donohoe. Mr. Donohoe objects on same ground as above stated. ) A. No. Q. Ho\\' many of the population of Oyzinik are Creoles and how many of them are Aleuts? (Objection by Mr. Donohoe. Mr. Donohoe objects f)n the same grounds as above stated.) * A. There are no Aleuts there. All Creoles except two or three white men. Q. You yourself took a great deal of interest iii the last Delegate election, did you not? ((Objection by ^Nlr. Donohoe. Mr. Donohoe objects on the same grounds as above stated;) A. Nothing special. Q. You preached to your congregation at the church once, did you not, in favor of Sulzer? (Objection by Mr. Donohoe. Mr. Donohoe objects on the same grounds as above stated.) A. I did. Q. You posted Sulzer's picture in the church? (Objection by Mr. Donohoe. Mr. Donohoe objects on the same grounds as above stated.) A. No ; it was posted in the hallway of the church. Redirect examination by Mr. Donohoe : Q. Counsel for Mr. Wickersham asked you whether Mr. Gregory, the Aleu- tian chief at Afognak, spoke Russian, and you said a little. Can he read and write in the English language? — A. No; unless lately he may have picked it up some. Q. It is a fact, is it not, that there are very few of the Aleuts at Afognak who can either read or write the English language? — A. The younger generation can, but the older, as a rule, can not. Q. When you were over there four years ago were there many of the grown Aleuts over the age of 21 years who could read or write? — A. Very few. Q. It is also a fact that many of the Creoles residing at Afognak can not read or write the English language? — A. Yes. sir. Q. Then only a few of them can read or write the English language? — A. Only a very few of them. Rev. N. P. Kashevaboff. Subscribed and sworn to before me this 7th day of July, 1917. [SEAL.] Frank J. Hayes, Notary Public m and for the Territory of Alaska. My commission expires May 19, 1921. WICKERSHAM VS. SULZEE. 251 TESTIMONY OF CECIL KING. Direct examiuation by Mr. Donohoe : Q. State your name. — A. Cecil R. King. Q. Where do you reside? — A. Kodiak. Q. How long have you resided here? — A. I have resided here since a boy. I have been away for some different lengths of time. Q. What is your age? — A. I am 38 years old. Q. Where was you born?^ — A. Unalaska, Alaska. Q. Do you hold some official position in the Russian Greek Catliolic Cliurch at Kodiak? — A. I am reader in the church. Q. What is that? — A. I am assistant to the priest. Q. Are j^oii acquainted at Afognak? — A. Yes, sir. Q. Did you ever live in Afognak? — A. Twice. Q. When was your residence there last? — A. From the fall of 1915 until June, 1916. Q. Are you acquainted with the people who live in the town of Afognak? — A. I am. Q. Are you acquainted with the Aleuts as well as Creoles? — A. I know all of them. Q. "Where do the Aleuts in Afognak live? — A. There is a separate village a little ways separate from the Creoles. Q. The inhabitants of the Aleut tov\-n are distinct and separate from the re- maining portions of Afognak. are they not? — A. Yes, sir; they are. Q. Have the Aleuts a chief? — A. Yes, sir. Q. When you speak of Aleuts you mean the aboriginal race of Alaska, do you not? — A. Yes. sir. Q. Who is the chief of the Aleuts residing at Afognak? — A. Gregoru Yakanak was when I was there. Q. Do you knoA^' whether he speaks the English language? — A. I have never heard him. Q. What language does he speak? — A. Aleut mostly. Q. Y'"ou speak the Aleut language? — A. Yes, sir. Q. You speak the Russian and English language also? — A. Yes, sir. Q. What is the language generally spoken in the Aleut town of Afognak? — A. Aleut. Q. There is no Russian or English language spoken there? — A. No. The Aleut seems to be the only language spoken there. Q. Even the Creoles speak the Aleut language? — ^A. Yes. Q. There is no iieAvspaper published at Afognak? — A. No. Q. Do the inhabitants of the town of Afognak get any papers or letters? — A. Yes ; some of them do ? Q. What does the mail consist of generally? — A. Fur advertisements, also some catalogues. They have to get the assistance of some one to explain them to them. Q. How about the Creoles at Afognak; do they speak the English language? — A. Some do and some don't. Q: What is the percentage of Creoles at Afogiiak that read the English lan- guage and understand it? — A. Very few of the older folks can read or write the English language. Q. When you speak of the older folks do you mean those from 21 years of age on up. — A. Yes, sir. Q. The children going to school are gradually getting acquainted with the English language, are they not? — A. I'es ; they are. The school children, how- ever, as a rule, speak nothing but the Aleut after they get off the school grounds. Q. Do you know Ivan Alhoon? — A. I do. Q. How long have you known him? — A. I was at the Afognak store in 1910, where I was in the store, and while there I met him. Q. What is he?— A. Aleut. Q. He resides in the Aleut village? — A. He does. Q. Do you know Matfrey Agick? — A. He is an Aleut, and resides in the Aleut village. Q. Do you know Wasele Apolon? — A. He is an Aleut and resides in the Aleut village. His father is chief at Uganik. 252 WICKEESHAM VS. SULZER. Q. Where is Ugauik? — A. It is about 60 miles west from Afognal^, on Kodiak Island. Q. Do you know Michael Boskofsky? — A. I do not know much about him, ex- cept that he is living with a Creole family. Q. Do you know Logan Chanin? — A. He is an Aleut and lives iu the Aleut Tillage. Q. Do you know Ivan Derenoff? — A. He is supposed to be a Creole, and I have heard many say that he is an Aleut ; in fact, the chief of Uganik claims to be his brother. Q. Do you know Wasele Eshnwak? — A. He is an Aleut and resides in Aleut village. Q. Do you know Peter Kewau? — A. He is an Aleut and resides iu Aleut village. Q. Do you know Nastacia Kilegman? — A. She is an Aleut. She comes from Douglas village, on the mainland ; she resides in the village. Q. How long has she lived in the village? — A. Since Katmai eruption; she belonged to the tribe that the Government removed from mainland after Katmai eruption. Q. Do you know Tumofry Naya ? — A. Yes ; he is from Katmai. He is an Aleut. He has lived in Afognak since 1910. Q. Do you know Andrew Shungan? — A. Yes; he is an Aleut. Q. Do you know John Taushwak? — A. Yes; he is an Aleut. Q. Do you know John Yakanak? — A. Yes ; he is an Aleut. Q. Do you know Wasele Eshnwak? — A. Yes; he is an Aleut. Q. Now, these natives you have stated as Aleuts, can they read or write the English language? — A. John Taushwak can. A. What about the rest of them? — A. John Y'akanak and Peter Kewan speak some good English, but the rest of them do not. Q. Did you say these natives whom you have just mentioned are pure- blooded Aleuts? — A. Yes, sir. Q. By Aleuts you mean the aboriginal race of Alaska? — A. Yes, sir. Q. Have these Aleuts in Afognak a chief? — A. They had the last time I was there. Q. Are they living in tribal relations ; that is, does the chief superintend them and generally advise them? — A. Yes, sir; when it comes to digging a grave for the burying of one of their own dead and looking atfer their moral duties. Q. Do the members of the tribe obey the orders of their chief? — A. Yes; as a rule they do. They, however, don't obey this man Gregori very much. Q. You speak of Aleut village ; name the villages where the Aleuts resides in this vicinity. — A. Part of Afognak, known as Aleut Village ; Ugauik, Eagle Harbor, Old Harbor, and Douglas. Q. In these villages do they have a chief who occupies the same position as the chief at Afognak? — A. They show more respect in these other places to their chief, and he has an assistant, which they have not at Afognak. Cross-examination by Mr. Rustgard : Q. What is your occupation at the present time? — A. Assistant to Father Kashevaroff. Q. Do you do any work outside of this church work? — A. I do. Q. What kind of work? — A. Just common labor. I am now working for the saltery. Q. Y^'ou are in the employ of Erskiue «& Co. at the present time? — A. I am not on steady ; just working by the hour and get pay for whatever time I put in. Q. How much of the time during the past year have you been m their employ? — A. Only since last March. Q. Where was you employed last summer? — A. By the Government. Q. In what capacity? — A. In the Bureau of Fisheries. Q. Where?— A. At Uganik. Q. Where is that? — A. It is on Kodiak Island about 60 miles from Afognak. Q. What time did you close your services with the Government? — A. Last September. Q. After you came back to Kodiak in the fall of 1916 did you work for wages for anybody? — A. No; not for anyone steady. Q. Who all did you work for? — A. I worked some for Erskine & Co. and also made a trip with Father Kashevaroff to Eagle Harbor. WICKEESHAM VS. SULZEE. 253 Q. What time did you take the trip to Eagle Harbor? — A. In October, 1916. Q. At that time did you go to Afognalj?— A. No. Q. Did you go to Ouzinki with Father Kashevaroff? — A. After having been to Eagle Harbor ; yes. Q. How much time did you spend at Ouzinki? — A. We were weather bound there for our days. Q. And on that trip you didn't go to Afognak? — A. No. Q. You were a member of the election board at Kodiak last November, were you not? — A. I was one of the judges. Q. Who were the other judges? — A. Dr. Silverman and Fred Sargenc. Q. Who appointed you judge of election? — A. Dr. Stone, the United States coiumissioner. Q. Where is Fred Sargent now? — A. I don't know. Q. What is his business? — A. Laborer. Q. Is he pure white? — A. No; his father- is American-born and his mother is Russian. Q. Could Sargent speak Aleut? — A. He spoke Aleut, Russian, and English, the same as I can. Q. What about Silverman — could he speak all those languages? — A. No; not that I know of. Q. What nationality was he? — A. He is a Jew. Q. Have you ever acted as judge of election before? — A. Yes; on the school election. Q. You were personally working for Sulzer before the election? — A. I was not. Q. What I mean is, you were one of Sulzer's partisans? — A. Yes, sir. Q. There were several voting at this place who could not speak English? — A. There were some. Q. How many did you see who voted at the precinct here who cauld not speak English? (Objection by Mr. Donohoe. Mr. Donohoe objected to that question on ac- count of it not being proper cross-examination, there having been nothing- brought out in this witness's direct testimony in any manner relating to the election held at Kodiak on the 7th day of November, 1917, and on the further ground that counsel for James Wickersham is endeavoring by cross-examina- tion to establish the election of WJckersham's contest at a time subsequent to- the expiration of the time when Wickersham should take such testimony.) A. Four or five. Q. I find that as a rule at every election, either school or Delegate, here or in the neighboring precinct, both Creoles and Aleuts voted. — A. There are no Aleuts here. Further I would like to say that most of those who couldn't speak or write English voted for Wickersham, for they brought in Wickersham tickets from which they marked their ballots. Q. You say there has never been any objection to the Aleuts voting hereto- fore? — A. There was one year before this. Q. You mean in the other precincts. — A. I heard that they were barred. Q. W^hen did you first hear that they were barred? — A. Some time ago; I think it was when Mr. Orr ran against Wickersham in 1910. Q. Don't you know that Aleuts were in the habit of voting at the voting pre- cincts on Kodiak Island? — A. There are no voting precincts where Aleuts reside on Kodiak Island. Q. Your understanding of the law was that if a person had a little white blood in him he had a right to vote, but if he was a pure Aleut he had no right to vote. — A. Yes, sir ; I find lately where they had the least strain of Aleut blood in him he had no right to vote since 1913, especially on the liquor question. As a matter of fact, on the liquor question I can't vote ; they won't allow me. Q. How long did you live at Afognak the last time you were there? — A. The last time from September, 1915, until June. 1916. • Q. During that period was there any saloon conducted at Afognak? — A. No saloon. That is a Government reservation. Q. Then these Aleuts at Afognak live like the rest of the population? — A. Yes, sir. Q. They live in the same kind of houses? — A. Yes, sir. Q. They dress the same way? — A. Yes. 254 WICKERSHAM VS. SULZER. Q. They have people who can write for them? — A. Yes; thej^ can't write anything themselves, outside of one or two like John Taushwak. Q. How do they happen to get these fur catalogues? — A. Fellows like John Taushwak send the fur houses their names. Q. Do the fur people send them any catalogues in Aleut language? — A. I don't think so, although I never saw what the letters and catalogues had in them. The only translation of Aleut I ever saw was in Russian. Q. Do many of these Aleuts have in their homes Sears-Roebuck catalogues? — A. Yes, sir ; also Montgomery Ward catalogues. Q. They are in the habit of sending for whatever they want?-^ — A. Y6s ; when- ever they can. Most of them are so hard up that they can't afford to send for anything. Q. They are badly in debt to the storekeepers at Afognak, are they not? — A. Yes ; mostly to Petelling. They owe the other some. Q. They live in families? — A. Yes; eacii family has their own home. Q. What are the special duties of the chief? — A. He keeps order and attends to their duties whenever he can be of any help to them. When anyone is sick he helps them as best he can ; if there is any work to be done he musters out the people to do it, and generally the road work consists in keeping the ground clear around the church. Q. Does he also help them in their business relations? — A. Sometimes he does. Q. It is his business to keep them posted on the laws of the country, is it not? — A. Yes, sir; if he knows anything about them. The present chief does not know much more unless somebody tells him. Q. How often do they elect a chief? — A. I don't know. I have never lived in a village, outside of Afognak, where they had a chief. Q. How long do some of the chiefs stay in power? — A. Some of them a long time. The chief at Eagle Harbor h;is been chief for over 15 yenrs. Q. Don't you know, as a matter of fact, that when they get tired of a chief they elect a new one. — A. No ; they must have some reason. Q. Then, when they dislike him, they tire him out and get a new one? — A. Yes ; that is it. Q. You do not mean to say that the chief makes any laws for them? — A. No, no ; laws are laid down by him, they have a meeting for whatever laws he passes on. As far as the law goes, they respect the laws of the country as much as they understand them. Q. They don't pretend to have a government of their own? — A. No. Q. You made some remark about Aleuts and Creoles being separate at Afnogak. To what extent are they separate? — A. They live in two separate parts of the village. Q. Is there any line between them? — A. No; they speak of one as the Aleut end and the other as the Creole end. Q. The two villages are really joined together? — A. Yes; there is about 1,000 yards of the creek that separates them. Q. There are no Creoles or whites living near the Aleuts? — A. Yes; right among them. ilr. John Falstead lives in the center of the Aleut village. He is a white man, a Norwegian. There are also some other Creoles living along among the Aleuts. Q. Very many?— A. There are four families. Q. Are' there any pure Aleuts living among the Creoles? — A. Not that I know of. Q. Which of the two are the most numerous? — A. The Creoles. Q. Are they much more numerous than the Aleuts? — A. About 3 Creoles to 1 AlejLit. Q. Did Father Kasbevaroff preach in favor of Charles A. Sulzer more than om-e in his churcli last fnll? — A. Once; he didn't solicit anything. He told the people to use their own judgment as to whom to vote for. Q. Didn't he refer to Sulzer as the new man? — A. No; everybody referred to liim as the new man. and the people generally referred to him that way,_ and when speaking of Wickersham they would say, the old fellow. Q. Didn't Father Kashevaroff tell them to vote for Sulzer? — A. No; I don't think so. Q. He posted Sulzer's jucture in the entrance to the church? — A. It was posted there, but don't know who posted it. I didn't see it myself, because some Wickersham booster toi-e it off. WIOKEESHAM VS. SULZEK. 255 Q. How large a percentage of the Creoles over the age of 21 years speak English at Afnognak? — A. Of the older ones I don't know. Most of the younger ones speak it. Q. The younger Creoles, as a rule, can speak the three languages? — A. Yes, sir. Q. The Aleuts, as a rule, speak Aleut and Russian ? — A. Not always ; some of them don't even understand that. Q. Tou mean that some of the Aleuts don't understand Russian? — A. Yes. Q. How many of the Aleuts at Afognak can not understand Russian? — A. I never talked to them in anything except Aleut. The only time I ever had a chance to speak to them was when I was twice in the store, and only talked then in Aleut to them. Q. The church services are all conducted in Russian? — A. In the Latin. Q. Isn't it the same language as spoken by the Russians? — A. There is a little difference. Q. One who can understand the church services can also understand the Russian that is spoken here? — A. He can some; there is a difference in the print. Q. There is a difference in the characters? — A. Yes; it is called the Slavonian. - Q. These Aleuts are good Christians? — A. The best tliat can be had. They attend church whenever they can. Q. They are devoted to their religion? — A. They are; chey tolerate no reflections thrown on their religious beliefs. Outwardly tliey may never resent it, but still they would feel much offended where they actually express them- selves at being offended. Q. In other words, they are what you say, a race with a profound religious sentiment? — A. Yes. Q. It is a tradition of the race that their forefathers have belonged to the Russian Church since they were first Christians? (Objection by Mr. Donohoe. Mr. Donohoe objects to any further examina- tion on this line on the ground that it is not cross-examination and is encumber- ing the record with purely immaterial and minute matter, and as all this matter will have to be printed in order to be presented to Congress this line of ques- tion should be carried no further, as it will have no bearing on the issues which are being prepared for Congress.) A. Yes, sir. Q. You refer to Afognak socially. You do not draw the line between the Aleut and the other people? — A. We don't, but the outsiders sometimes do. They even draw it with us as well as the Aleuts. Q. You mean that the outsiders draw social lines around the Creoles, or even Russians and not only against the Aleuts? — A. There are no Russians here, but there is some people that will do that even to the Creoles. Q. Locally no such lines are recognized? — A. No, sir. Q. A family that has made its home here treats everybody alike? — A. They do. Q. And when you have a dance in this town all may go and dance together? (Objection by Mr. Donohoe. Mr. Donohoe objects to that question as incom- petent and irrelevant, it not being confined to the Afognak matter, that is now under consideration. ) A. Yes, sir. Q. And that is true of Afognak as v.-ell as any place else? — A. Yes. Redirect examination by Mr. Donohoe : Q. Counsel for Contestant Wickersham asked you a question, if you had not been a partisan of Sulzer's during the campaign last fall, and also risked if you were a member of the election board, which you answered yes. I will ask you if Dr. Silverman, the other member of the board of election with you, was not a partisan of James Wickersham?— A. He was. He was a verv strong Wick- ersham man. -He expressed himself right at the polls. Of course, there" was no one else there at the time but us of the board, and he said it was purely a matter of friendship with him that he was acting in favor of Judga Wickersham. Q. You were asked in your cross-examination about the natives sending out to catalogue houses for supplies, and in reply to that you stated that they sent out for some things when they had the money to spare. You state that some of the Aleuts at Afognak are heavily -indebted to Mr. retelling; is that correct? — A. Yes, sir. 256 WICKEESHAM VS. SULZER. Q. I will ask you if Mr. Pelellins:, running the campaign last fall, was not .i strong partisan of James Wickersham? — A. I don't know; I wasn't at Afognak last fall. Q. Is it not a fact that the island of Afognak and the grounds adjacent thereto have been reserved by the Government as a fishing reserve for the Alaska native tribes? (Objection by Mr. Rustgard. Mr. Rustgard objects for the reason that it calls for hearsay evidence, is leading and in no manner redirect, and, further, that the public records are the best evidence on the subject.) A. I have only understood that it was for people residing on Afognak Island. No one else can fish there. Q. Is it not a fact that no one is permitted to fish in waters adjacent to Afognak Island except the Aleuts and Creoles that are living there? — ^A. I understand it ; and even they have to have a permit. Q. As I understand it, no white man is permitted to fish unless he is married and has a family? — A. I don't know. Cecil R. King. Subscribed and sworn to before me this 7th day of July, 1917. [seal.] Frank J. Hayes, Notary Public for Alaska. My commission expires May 19, 1917. TESTIMONY OF MAETIN LAESEN. Direct examination by Mr. Donohoe : Q. State your name. — A. IMai-tin Larsen. Q. What is your age? — A. Fifty-seven years. Q. Where do you reside? — A. Afognak Island. Q. How long have you lived on Afognak Island? — A. I came there in 1893. Q. You have resided there ever since? — A. Outside of having been away worli- ing at Valdez a couple of times, where I worked for the Government. Q. Are you acquainted with the natives of the Aleut village of Afognak? — A. Yes, sir. Q. Are you acquainted with the inhabitants of the Creole village of Afognak? — A. I'^es, sir. Q. Were you at Afognak on the day of election, to wit, November 7, 1917?— A. I was. Q Did you vote?— A. I did. Q. Were you in and about the voting place? — A. I just went in and voted and went right out. Q. Do you know of the residents of Afognak, which ones are Aleuts and which are Creoles? — A. I do. Q. I will ask if Ivan Algoon, who voted on election day last November 7, is an Aleut? — A. Yes. sir ; he lives in the Aleut village. Q. Is Mafrey Agick an Aleut — A. Yes ; he lives in the Aleut village. Q. Is Wasele Apolou an Aleut? — A. He is an Aleut, he came from Uganik, Alaska. Q. Is Michael Boskofsky an Aleut? — A. He is an Aleut but was adopted by a Creole family. Q. Is Logan Chanin an Aleut? — A. He is an Aleut and lives in Little Afognak. Q. Is Ivan Derenoff an Aleut? — A. He is an Aleut but was adopted by ti Creole family. Q. Is Wasele Eshnwak an Aleut? — A. He is an Aleut. Q. Is Peter Kuwen an Aleut? — A. He is. Q. Is Nastacia Kilegmnan an Aleut? — A. She is an Aleut. Q. Is Timofey Naya an Aleut? — A. He is an Aleut. Q. Is Andrew Shunagin an Aleut? — A. He is. Q. Is John Taushwak an Aleut? — A. He is. Q. Is John Yakauak an Aleut? — A. He is. Q. Is Gregori Yakanak an Aleut? — A. He is. Q. Did you see John Taushwak at the place where they were holding the election? — A. I did. Q. Did yovi have any conversation with him? — A. No'. Q. Did any of these parties that you have just mentioned tell you that they voted for James Wickersham? WICKEESHAM VS. SULZEK. 257 (Objection by Mr. Rustgard. Mr. Rustgard objects on tbe ground that tlie same is incompetent and only hearsay and is not the best evidence and for the reason that the voter lias a right to Iiave liis ballot kept secret.) (Statement of Mr. Donohoe. Mr. Donohoe states that his understanding of the law is that once you establish that a voter has illegally voted you may then call for any testimony tending to show for which of the two contending parties he voted.) A. No, sir. Q. Do you know where these Aleuts are at this time. I mean do yoii know where they work? — A. I do. Q. State where they are working now, first where is Ivan Alhoon? — A. He is working at the Government hatchery about 74 miles from Afognak. Q. Where is Mafrey Agick working? — A. He is at Malena fishing for the Kadiak Fisheries. Q. How far is Malena from Afognak? — A. It is a five-hour trip from Afognak. Q. Where is Wasele Apolon now? — A. I don't know where he is. Q. Where is Michael Boskofsky now? — A. He is at Paramonon on Afognak Island. Q. How far is this from Afognak? — A. It is about 30 miles. Q. Where is Logan Chanun? — A. He is at Little Afognak. Q. How far is that from Afognak? — A. Fifteen miles. Q. Where is Ivan Derenoff? — A. He is at Afognak. Q. Where is Wasele Eshnwak? — A. He is at Uyak Bay. Q. How far is that from Afognak? — A. About 65 miles. Q. Where is Peter Kewan? — A. He is at Uganik. Q. How far is that from Afognak? — A. Forty-three to forty-five miles. Q. Where is Nastacia Kilegman? — A. She is at Paramonon with her husband. Q. Where is Timofey Naya? — A. He is working at Afognak. Q. Where is Andrew Shunagin? — A. In Little Afognak. Q. AVhere is John Taushwak? — A. Working at Malena. Q. Where is John Takanak? — A. He is at Paramonon. Q. Where is Gregori Yakanak? — He is at Paramonon. Q. Do you know whether John Taushwak, at the election held on November 7, 1917, induced any of the natives to go up and vote? — A. I don't remember. Q. Did you see him bring any of the Aleuts to the polls? — A. No. Q. Did you see him write out a ticket for some of the voters? — A. Yes. Q. Were those tickets for the Aleuts? — A. Yes. Q. What did he write on those tickets? — A. I don't know. Q. Did he go into the booths with them? — A. I don't know. Q. You saw him fix up the tickets? — A. Yes> sir. Q. He wasn't a judge of election, was he? — No. Q. How many tickets did you see him prepare? — A. One. Q. Do you know for whom that ticket was prepared ?• — A. No ; I don't remember. Q. What part of Afognak do you live in? — A. In Creole village. I live near the Russian church. Q. Do vou know whether the Aleuts in Afognak have a chief? — ^A. Yes; they have a chief. Q. Who is the chief?— A. Gregori Yakanak. Q. Are they separate and distinct from the Creole village? — A. No; from one end of the town to the other is a distance of about 2 miles. Q. Has this chief of the Aleut village at Afognak any control over the Creole village? — A. No; he has nothing to do with the Creole village. Q. Do the members of his tribe and in the village obey the chief? — A. Some- times they do. If they have got to work around the church they do. Outside of that they don't take much notice of him. Q. Do you know whether there' is many of those Aleuts who can read and write? — A. I know that John Tausrwak can read and write some, and also .John Yakonak, who has been going to school a little. Q. Now, this John Taushwak is the man that you saw preparing ballots last fall on election day? — A. Yes. Q. He is the Aleut, then, that can read and write? — A. Yes, sir. Q. He is the man you saw preparing the ballots at the election? — A. Yes, sir. Q. You know all of these Aleuts personally yourself? — A. Yes. Q. And you have known them for years? — ^A. Yes. 13289—17 ^17 258 WICKEKSHAM VS. SULZER. Q. Do you know anything about the fishing reservation on the waters adjacent to Afognak as to whether or not it has been reserved for the Alaska natives or not? — A. Yes, sir. Q. Can any white man fish in these waters adjacent to Afognak Island who is not married to a native or Creole? ( Objection by Mr. Rustgard. Mr. Rustgard objects to the question, because it calls for information which is a matter of purely public record ; the evidence solicited is hearsay and not the best evidence.) A. No, sir. Q. It is a reserve made for the Alaska natives? — A. Yes, sir. Cross-examination by Mr. Rustgard : Q. Who grants the permits to fish in the waters adjacent to Afognak Island? — A. The fish commissioner. Q. Where is he stationed? — A. He is stationed at Kodiak now. Q. What is his name? — A. Mr. Ball. Q. You signed an affidavit some time ago, Mr. Larsen, did you not? — A. Yes, sir. (Mr. Donohoe objects on the ground that no affidavit has been introduced by contestee. ) Q. At whose request did you sign the affidavit? (Objection by Mr. Donohoe. Mr. Donohoe objects on the ground that it is not proper cross-examination. The affidavit has not been introduced in evidence. The contents of the affidavit is not disclosed, and it is incompetent, irrelevant, and immaterial.) A. Mr. Armstrong. Q. Who prepared the affidavit? ( Objection by Mr. Donohoe. Mr. Donohoe objects on the ground above stated. ) A. I don't know. Q. It was already written when you signed it? — A. Yes, sir. Q. The Armstrong you refer to is the deputy United States marshal? — A. Yes, sir. Q. Do you know what the affidavit contained ? — A. I do not. Q. You have testified about a number of persons whose names were read to you as being Aleuts ; do you know that Andrew Shunagin is an Aleut? — -A. I don't know any more than the fact they call him an Aleut. Q. Who calls him? — A. Everybody. Q. You couldn't tell him as an Aleut by looking at him? — A. I don't know. Q. You find it hard to draw the line between the Aleuts and Creoles? — A. No. Q. You are just as sure that Andrew Shunagin is an Aleut that you are sure that any of the other names you have testified to are Aleuts? — A. My father-in- law told me that they were Aleuts. Q. Then you couldn't tell by looking at him whether he was an Aleut or not? — A. No ; it is a church record. Q. Did you read the church record? — A. I heard Father Kashevaroff! say so. Q. Then these people are Aleuts because you heard Father Kashevaroff say so? — A. No; it is in the church records. Q. Now, Mr. Larsen, don't you know that you are under oath and are swearing to the truth? — A. Yes. Q. You testified that Simeon Berestoff was an Aleut. Now, how do you know him to be an Aleut? — A. No, sir ; I never testified to that. Q. Who is Nastacia Kilegman? — A. She is an Aleut. Q. AVhere is her husband? — A. At Paramonon. Q. What is he doing there? — A. Fishing for the Kadiak B^'isheries Co. Q. He is also an Aleut? — A. Yes. Q. How do you know him to be an Aleut? Did you hear Father KashevarofE testify that he was an Aleut? — A. No. Q. Then how did you know him to be an Aleut? You testified about the chief that sometimes the Aleuts obeyed him and sometimes they did not, is that cor- rect?— A. It is. Q. You said they generally obeyed him when there was anything to do around the church?— A. Yes. Q. Is his wife a full-blooded Aleut? — A. No. Q. Is she a Creole?— A. Yes. Q. Is your father-in-law a Creole? — A. Yes. Q. Where does he live? — A. In Afognak. Q. In Creole Town? — A. Yes, sir. Q. Do you have a chief there? — A. Yes. WICKERSHAM VS. SULZEE. 259 Q. Does your wife have anything to do with the chief? — A. Nothing except they vote for a chief whenever a new one is elected. Q. How often do they elect a chief? — A. They elect a new chief every once in a while. Q. Who is chief now? — A. Nichol Sheratin. Q. What is his business? — A. I don't know exactly what his business is; it is generally to keep order. Q. His duties are practically the same then as the Aleut chief? — A. Prac- tically the same. Q. When the fishermen want more wages they start things through their chief, then?— A. Yes. Q. He is a walking delegate? — A. Yes, sir. Q. Some time ago they had meeting over at Ouzinki between the Aleut chief of Afognak and the Ouzinki chief? — A. Yes. Q. For what was this meeting called? — A. To arrange for more pay for fish. Q. This chief, then, is the head of a sort of labor organization? — A. Yes. Redirect examination by Mr. Donohoe : Q. How many people did you say are living in Afognak, in both villages, over the age of 21 years, just men alone? — A. About 1.50. Q. How many of those inhabitants are white men ; I mean that are neither Aleuts or Creoles? — ^A. Twenty-one men, white. Q. And the rest of the people living on Afognak are either Aleuts or Creoles? — A. Yes. A. Yes ; all the rest of these men. Q. Now, the Creoles have a chief the same as the Aleuts, but the white men that are there have nothing to do with that chief? — ^A. No. Martin Labsen. Subscribed and sworn to before me this 7th day of July, 1917. [seal.] Feank ,T. Hayes. Notary Public for Alaska. My commission expires May 19, 1921. certificate oe notaey. United States of Ameeica, Territory of Alaska, Third Division, ss: I, Frank .T. Hayes, notary public in and for the Territory of Alaska, duly commissioned and sworn, residing at Valdez, Alaska, do hereby certify that pursuant to the notice served on contestant James Wickersham, at Auburn, King County, State of Washington, on the 27th day of .Tune, 1917, which said notice is attached to the deposition of Arthur Lang, and pursuant to the sitpu- lation hereinbefore set forth entered into on the 7th day of .July, 1917, be- tween said contestant James Wickersham, acting by and through his duly ac- credited attorney, John Rustgard, and said contestee Charles A. Sulzer, acting through his duly accredited attorney, T. J. Donohue, personally appeared be- fore me at the hour of 2 o'clock in the afternoon of the 7th day of July, 1917, at the office of the deputy United States marshal at the town of Kodiak, third judicial division, Territory of Alaska, Earnest Strickler, Father N. P. Kashevaroff, Cecil King, and Martin Larsen, witnesses on behalf of Charles A. Sulzer, contestee. That said witnesses were each by me first duly sworn to tell the truth, the whole truth and nothing but the truth, and then gave their depositions as hereinbefore set forth upon the oral interrogatories propounded to each of them by T. J. Donohue, attorney for Charles A. Sulzer, contesree, and upon the oral cross-interrogatories propounded to each of them by .John Rust- gard. attorney for James Wickersham, contestant. That said depositions after being taken in shorthand were typewritten by me, and after being so typewritten were submitted to and read by the attorneys of each of said parties and ap- proved by them as a true and correct transcript of the sworn testimony of the respective witnesses, and said respective depositions were read to each of said witnesses and each of said witnesses then and there subscribed and at- tested his respective deposition as being true in all respects and as being the testimony given by him. In witness whereof I have hereunto set my hand and affixed my notarial seal this 8th day of July, 1917. [seal.] Feank J. Hayes, Notary Public for Alaska. My commission expires May 19, 1921. 260 WIGKEESHAM VS. SULZEK. .STIPULATION. Whereas Charles A. Snlzer. contestee. served upon James Wickersliam. con- testant, on the 27th day of Jnne, 1917, at Seattle. Wash., a notice of his inten- tion to take depositions at Afogrnak. Alaska, in support of his answer to contest- ant's petition, on the 9th day of July. 1917, and Whereas John Rnstgard. attorney for .Tames Wickersliam, contestant, and T. .T. Donohoe. attorney for Charles A. Siilzer. contestee, arrived at Kodiak on the 6th day of July. 1917, for the purpose of takina; said depositions, and having^ taken the said depositions at Kodiak in accordance Avith the said notice and stipulation entered into, the parties now desire to proceed to Afognak and vicinity and take the depositions of witnesses for the si^id contestee in that vicinity, and owing to the fact that said witnesses are scattered over an area of 60 or 70 miles, and it will he necessary to take their depositions at various times and various places. Now, therefore, for the purpose of faciliating the taking of said depositions, it is hereby stipulated and agreed by and between the parties to the above- entitled contest, by and through their respective attorneys, that the depositions on behalf of Charles A. Sulzer, contestee, as provided for in the notice served upon the said James Wickersliam on the 27th day of June, 1917, to be taken at Afognak, may be taken at any time or place where such witnesses are found, provided that the .said John Rustgard. attorney for the same .Tames Wicker- sham, contestant, is present at the taking of the same, and provided further that the said John Rustgard, as attorney for contestant, reserves the right to make any objections he may have to the taking of said depositions other than as to the time and place of taking them. This stipulation is entered into for the pur- pose of saving time in the taking of said depositions. Dated at Kodiak, Alaska, this 7th day of July, 1917. John Rustgaed, Attorney for James Wicker sham, Contestant. T. J. DONOHOE, Attorney for Charles A. Sulzer, Contestee. DEPOSITIONS OF .TULItJS FORSMAN, E. PETELLIN, IVAN ALHOON, IVAN DERENOFF, GEEGORI YAKANAK, CHARLES PAJOMAN. Be it remembered that pursuant to the notice hereunto annexed and the stipulation this day entered into between John Rustgard. the duly and regu- larly accredited attorney of .Tames AVickersham, contestant, and T. .T. Donohoe. the duly and regularly accredited attorney of Charles A. Sulzer, at the hour of 7.30 o'clock in the evening on the Stli day of July, 1917, at the schoolhouse in the town of Afgonak, Alaska, third .iurlicial division, before me, Frank .T. Hayes, a notary public in and for the said Territory of Alaska, personally ap- peared Julius Forsman, E. Petellin. Ivan Alhoon, Ivan Dei'enoff. Gregori Yakanak, and Charles Pajoman, witnesses produced on behalf of Charles A. Sulzer. the above-named contestee in the above-entitled contest now pending before the House of Representatives of the Congress of the Sixty-fifth Congress, first session. Each of said witnesses were by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and were then and there examined and interrogated by T. J. Donohoe. attorney for the said Charles A. Sulzer. contestee, and by John Rustgard, attorney for the same James Wicker- sliam, contestant, and said witnesses testified as follows: TESTIMONY OF JULIUS FORSMAN. Direct examination by Mr. Donohoe : O. ]\Tr. Forsman. where were you born? — A. Finland. Q. When did you first come to America? — A. In 1878. Q. When did you come to Alaska? (Objection of INIr. Rustgard. Mr. Rustgard objects to the examination of this witness for the reason that no notice has been served upon James Wicker- sham that this man's deposition would be taken. At this time I further object to the examination of any witnesses whatsoever on the question of whether or not any particular elector had a right to vote at the Afognak precinct at last Delegate election, for the reason further that -no specific complaint is made in the answer of any particular individual who voted unlawfully, nor is there WICKEESHAM VS. SULZEE. 261 ' any allegation made in the answer of any particular unlawful acts. I further wish to enter an objection to the examination of any and all witnesses for the reason that the notice of depositions was not served upon Wickersham in time to enable him to either personally come and be present at the taking of these depositions or in time to forward me a notice of the taking of the depo- sitions, and for that reason I have no knowledge of who were designated in the notice as witnesses.) Mr. DoNOHOE. Counsel for the contestee states that the notice was served upon James Wickersham on the 27th day of June, 1917, somewhere in the State of Washington, and the fact that Wickersham had sufficient notice is borne out bv the fact that Mr. Rustgard is here representing him. A. In 1888. Q. Are you a naturalized citizen? — A. No. I have just my intention papers. I sent down for my full papers, but have not received them. Q. You voted at the election held in Afognak on the 7th day of November, 1916, at which there was a Delegate from Alaska to Congress voted for? — A. Yes, sir. Q. For whom did you vote for Delegate to Congress? (Objection by Mr. Rustgard. Mr. Rustgard objects to this as being imma- terial and irrelevant, and for the further reason that no charge has been made by contestee that this witness voted unlawfully, and for the further reason above stated, and there is no allegation made by contestee that the vote was fraudulent, and, moreover, any voter has the right to have his ballot kept secret, and it is too late at this time to determine whether his vote was ille- gally or legally cast, as the matter was passed upon by the judges of election honestly. ) Mr. DoNOHOE. Contestee admits that where a voter has cast a legal ballot that he is entitled to secrecy, but where an illegal ballot is cast, as in the case of the witness now on the stand, the law does not extend to the voter the protection of secrecy. Mr. RusTGAKD. I will say that you don't have to answer the question unless you want to. A. Wickersham. Cross-examination by Mr. Rustgaed : Q. When did you come to the United States? — A. 1878. Q. How old are you?— A. 62. Julius Foesman. Subscribed and sworn to before me this 8th day of July, 1917. [SEAL.] Feank J. Hayes, Notary Public in and far the Territory of Alaska. My commission expires May 19, 1921. TESTIMONY OF E. PETELLIN. Direct examination by Mr. Donohoe : Q. Mr. Petellin, you reside in Afognak? — A. I do. Q. How long have you resided in Afognak? — A. Since the fall of 1907. Q. You were one of the judges of election at the election held the 7th day of November, 1916, at Afognak, Alaska ? — A. I was. Q. As one of the judges of election do you recall keeping a registration book of the voters at that election? — A. Yes. Q. I now hand you the registration book for the November 7. 1916, election at which a Delegate to the United States Congress was voted for, and ask you if this is the registration book that was kept at that election at Afognak?— A. I believe it is._ Q. I will ask you to state what is meant by the " crosses " in ink on the right-hand side of the various names which appear in that registration book?— A. Well, as near as I remember, these crosses were put in for the people who were unable to write, and who asked the judges to assist them. Q. Wherever there is crosses in ink on the right-hand sile of the names it is to indicate that the parties were unable to write their own names, then? — A. No; not unnecessary to write his own name, but as near as I can remember some miglit not ))e able to write their own names, but as to number I can not state positively. 262 WICKEESHAM VS. SULZEE. (>. Is not every name that appears upon this registry booli which has a cross at the right-hand side of it written in your own handv\'riting? — A. I believe tliey are. Q. Out of 62 voters who cast their ballots at the Afognak precinct at the election held on the 7th day of November, 1916, there were 21 for whom you made these crosses that were unable to write their own names? — A. They might not be able to write them in English. Q. Did anybody other than the judges of election at the election held on the 7th day of November, 1916. for the election of a Delegate to Congress assist the illiterate voters in preparing their ballots? — A. Yes; I believe there was. Q. State who that was. — A. As near as I can remember, believe it was John Taushwak. Q. How many ballots did John Taushwak prepare for illiterate voters? — A. That I don't remember. Q. John Taushwak is an Aleut, is he not — A. Well, he is a native of this country. Q. He lives in the Aleut village, does he not? — A. Yes. Q. Mr. Petellin, previous to the last election you were working for Wicker- sham, were you not? I mean by that you were a strong partisan of Mr. Wicker- sham's and were advocating his election? — A. You mean the election previous to this one? Q. No ; I mean previous to the election last fall, during the latter summer months, and right up until election day. — A. I might have said a few words in his behalf. I always believe people have a right to vote for whom they please. I didn't want to mix up in politics at all. Q. Where did John Taushwak prepare these ballots? — A. He prepared them in the voting place. Cross-examination by Mr. Rustgaed : Q. As soon as you discovered that John Taushwak helped to prepai'e some ballots did you call his attention to the law on the subject? — A. There was a sheet which had been sent along with the various- election supplies regarding the marking of ballots by the judges of election, and I showed that sheet of in- structions to him. Q. And so, then, you called his attention to the rule as soon as you found out he was helping to mark some of the ballots? — A. Yes; I did. Q. Did he stop then?— A. He did. Q. The election rules were .sent you by the officials who sent you the other documents pertaining to election? — ^A. Yes; they all came together in one envelope. Q. Did you and the other judges of election try to post yourselves on those rules and instructions and follow them? — A. Yes, sir ; we did. We tried to as far as possible. Q. You state that you thought all these names on the register marked with an " X " on the right-hand side were possibly in your own handwriting. I want to call your attention ta the name of Peter Kewan and ask you whether that is in the same handwriting as the otlier names on the register? — A. It is not in my handwriting. Q. The name of .Julius Forsman; is that in your handwriting? — A. No. Q. The name of Martin Larsen ; is that in your handwriting? — A. No. Q. Who put on these crosses on the right-hand side of the names? — A. The people who ordered them, as near as I can remember. Q. Y'ou, then, followed the system that when a person came to vote you had him sign this register for himself if he could? — A. Yes, sir. Q. When a person couldn't write his own name you wrote it for him and had him put the cross after? — A. Yes; when, he couldn't write it in English. • Q. What are these crosses on the left-hand side of the list of names? — A. I don't know. Q. When were the crosses put on? — A. I don't know, unless they were put on since the vote was sent from here. Q. Then they have been put on since this list was mailed to the clerk of the court? — A. Yes. Q. How many of these parties whose names you wrote" on the register book are now in Afognak at the present time? — A. I can't say positively; but there are, I believe, approximately six of them. Q. Did the judges of election discuss politics or the candidates at the polling place? — A. Not that I know of. I don't remember of any discussion. WICKEESHAM VS. SULZEE. 263 Q. Was there any discussion of the candidates in the polling place at all? — A. I don't remember. Q. Then j^ou think that all of the judges of election followed the rules as near as they could understand them? — A. Yes; we tried to. Q. All the judges tried to follow the rule, then?^A. Yes. Q. You knew personally all of these judges of election, did you not? — A. Yes. Q. You were born in Alaska? — A. Yes, sir. Q. And have lived here at Afognak since 1907? — A. Yes, sir. Q. Where were you born? — A. I was born at Kodiak. Q. How far is that from Afognak? — A. Kodiak is somewhere between 25 and 30 miles from here. Q. How old are you? — A. I am 47 years old. Q. You speak the Aleut, the Russian, and English languages, do you not? — • A. No ; I speak English, Russian, and possibly a few words in the Aleut — not enough Aleut to make only a few sentences. Q. Are there many natives of this place who do not speak any other language but Aleut, or do most of them speak Russian? — A. I don't know of anyone who speaks nothing but the Aleut language. Q. When you speak to the i-esidents of this town who are raised here you speak Russian? — A. Yes; both Russian and English. Q. Did you personally know these parties on this registration book opposite whose names to the right there is a cross? — A. Yes. Q. You have known all of them nearly all your lifetime, have you not? — A. Yes, sir. Q. Did you know them to be legal voters at the time they voted? Mr. DoNOHOE. Contestee objects, because this calls for a conclusion from the witness. The qualifications of a legal voter have not been stated to the wit- ness, and no evidence has been offered to show that he knows what ones are legally entitled to vote for a Delegate to Congress. A. i belived them to be legal voters. Q. Their reputation is that they were born in Alaska? Mr. DoNOHOE. Contestee objects; it is immaterial, for reputation does not qualify them as voters. A. (No answer is given by witness.) Q. They belong to the class known as the Aleuts, do they not? A. (No answer is given by witness.) Q. What race does Ivan Alhoon belong to? — A. In my opinion he belongs to the mixed blood. He is a native of Alaska. Q. You think that none of those who voted were pure Aleuts, but were eighth white or had some mixed blood in them? — A. I think the most of them, or, rather, nearly all of them. Q. How about Ivan Alhoon? — A. In my opinion he is of mixed blood. Q. What about Mafrey Agick? — A. I think he is of mixed blood. Q. What about Wasele Apolon?— A. I can't say. Q. Then you find it hard to tell? — A. It is very hard to tell. Q. Referring to those people here in Afognak who live in that part of the settlement which is known as Aleut town, do those people live in the same kind of house as and now live in the same way as other people? — A. They do. Q. Do they keep cattle? — A. Yes. Q. How long have they been keeping cattle? — A. From the Russian times, be- fore the country was ceded by Russia to the United States. Q. Isn't it a fact that prior to the eruption in 1912 practically every family in that part of the town kept cattle? Mr. DoNOHOE. Contestee objects on the ground that keeping cattle does not qualify one as an American citizen. A. Quite a number of them did. Q. You then say it has been a common thing among those people to keep a milch cow, has it not? — A. It has been a common thing. Q. At the eruption when the country became covered with ashes in 1912 a good many cattle were killed off, were they not? Mr. DoNOHOE. Contestee objects to the question as incompetent and irrele- vant, and is simply encumbering the records. A. Yes. Tliey died shortly after. Q. The cattle died because the food for them was destroyed by the ashes? Mr. DoNOHOE. Contestee objects on the ground that it has no bearing on the case. A. Yes ; they died from scarcity of food. 264 WICKEESHAM VS. SULZER. Q. Since that time they have comnieuceci to acquire cattle again? Mr. DoNOHOE. Contestee objects for reasons set forth in last objection above. A. Some ; those who \^'ere able to. Q. Do those people occupying that part of town known as Aleut town here in Afognak raise their own potatoes and other vegetables? Mr. DoNOHOE. Contestee objects for reasons set forth above. A. Yes ; they have their own gardens. Q. They practically all have vegetable gardens in proximity of their homes? Mr. DoNOHOE. Contestee objects for reasons set forth above. A. Yes; quite a number of them. * Q. Do not most of them have their own homes? — A. Yes. Q. Those people living in the Aleut village, so called, do they have any gov- ernment of their own such as Indian tribal relations? — A. Not that I know of. Q. They have no village government? — A. No. Q. The town is not incorporated? — A. No. Q. l^'ou have no judge here? — A. No. Q. No commissioner here either? — A. No. Q. No deputy marshal here? — A. No. Q. There has been some testimony to the effect that they have a chief. Will you explain what the duties and the functions of that chief is? What is his business? — A. He acts as a sort of a chairman over the bunch for any work that is to be done in the town ; that is, such when some repairs have to be done to the road or to the church, and minor things of the like. Q. If they have a meeting in the town he is chairman? — A. Yes. Q. Do the people in this town sometimes hold meetings to discuss what to do for the public good? — A. Yes, sir. Q. Who is the chairman of such meetings? — A. As a rule the chief is. Q. Who elects the chief? — A. They elect the chief themselves; I mean the people do. Q. How often do they elect a chief? — A. They don't have any rule set. Some- times a chief serves as long as he wants to and then resigns. They have not regular rule. Q. Then, if they don't like the chief, do they discharge him and elect a new one? — A. They have that right. Q. Do they change chiefs sometimes?— A. Yes; they do. Q. What else does the chief do except act as chairman of the meetings; does he have anything to do with the church? — A. Not that I know of. Q. In case of reiiairs to the church, has the chief authority to make the re- pairs ? — A. As a rule, I think the priest looks out to the ordering of the repairs ; he asks the chief to call a meeting. Q. Is it not a fact that the chief is selected at the suggestion of the priest? — A. At times ; yes. Q. If you want to build a sidewalk or improve the streets, you call a public meeting to discuss it? — A. Yes. Q. Has there ever been any talk of abolishing the chief? — A. Yes: one time, when a certain remark M'as passed that they intended to abolish chiefs and at the time the predecessor to this priest was leaving. However, the departing priest recommended the retaining of the chief, and it was mainly for this rea- son that the chief was not abolished. Another thing, by having a chief it makes it handier for the priest to call on the chief, and he, the chief, can call a meet- ing of everybody. Q. Now, this system of liolding town meetings and electing a head, which in the English language you call him chief ; now, isn't that a system imported from Russia, as far as you can remember.? Mr. DoNOHOE. Contestee objects to the question as calling for hearsay testi- mony. A. I believe it is for the reason that among these mixed blood even the pure- blood Russians they used to have that system, and they call it " Desetnik." Q. And reputation is that it is a system which you have inherited from Russia ? Mr. DoNOHOE. Contestee objects on the ground that it is incompetent, irrele- vant, and hearsay evidence, and on the further ground that reputating has no bearing on this contest. A. Yes, sir. Q. Is not the system which you have followed here in these towns the same system which is referred to in Russia as the " Semstos " system? WICKEESHAM VS. SULZEE, 265 Mr. DoNOHOE. Contestee objects on the ground that same is incompetent and Irrelevant. A. I believe so. Q. Do you know whether the people living in the Aleut town of Afognak were called upon to pay and did pay poll taxes under the Territorial law of 1913? — A. I believe they did. Q. As far as you know, then, all of those who were of the proper age did pay that tax? — A. As far as my knowledge goes. Q. You know that written demand was made upon them for that poll tax and was sent out by the commissioner, irrespective of whether they were Aleuts or Creoles ? Mr. DoNOHOE. Contestee objects on the ground that it is irrelevant and in- competent testimony. The fact that they did or did not pay a poll tax did not qualify them as legal voters at the Delegate election. A. Yes, sir. Q. You do not know of any Aleut who did not pay poll taxes if he was within the proper age limit? Mr. DoNOHOE. Contestee objects on grounds of reasons set forth above. A. I do not. Q. At the election last fall, whenever the judges marked the ballots for a voter, did they mark that fact upon the ballot? — A. Yes; the judges signed on the opposite side that they marked the ballot. Q. You do not mean to testify that all of those who could not write their own name in English had assistance in marking the ballot? — A. No; I don't think so. I do not remember. Q. You heard the testimony of .Julius Forsman, who testified that he was not a citizen of the United States. Did he tell you that he was not a citizen? — A. I think he said he was a citizen of the United States. Q. And you let him vote because you thought he was a citizen of the United States? — A. Yes. sir. Redirect examination by Mr. Donohoe: Q. .John Taushwak was not a judge of the election was he? — A. No. Q. Did he sign his name on the back of any of the ballots which he pre- pared for some of those who could not read or write? — A. I don't remember. Q. Were you the judge of election that prepared all the ballots for the voters who could not read or write? — A. That I can't remember positively. Q. Do you recall at this time of any of the other two judges preparing any ballots for the voters who could not read or write? — A. I meant to say that the three judges assisted those who requested it. Q. Did all three judges sign on the back of the ballot the fact that those particular ballots had been prepared for those voters who could not read or write? — ^A. As near as I can remember. Q. None of the judges signed the ballots that John Taushwak had? — A. Not that I know of. Q. Did you in your election returns to the governor of the Territory of Alaska make any note of the fact that .John Taushwak prepared any of the ballots for the voters who could not read or write? — A. I don't remember. Q. You would remember if such a report had been made. A. I don't remem- ber such a report being made. Q. You said there were six of the voters who could not read or write that are now in the village of Afognak? Mr. RusTGAED. Contestant objects because witness has not so testified. He only testified that he thought there were but six at present in this village whose names he wrote on the registration books because they claimed they could not write their own names in English. Q. Then how many of the voters who have signed the register by a cross are now in the village of Afognak? Name them. — A. Ivan Derenoff, Ivan Alhoon, John Yakanak, Gregori Yakanak, Alex Knagin, sr., and Alexandra Nekrasoff. Q. Is .John Taushwak here? — A. I don't think he is. Q. Do you know where he is? — A. I think he is out fishing. Q. Do you know where he is fishing? — A. Either at Malena or Paranoff. Q. Is it not a fact that most of the Aleut and Creole voters are at this time scattered around various fishing stations? — A. Yes, sir. Q. The Creoles have a chief in Afognak the same as the Aleuts in their village? — A. Yes, sir. Q. The chief in the Creole village has practically the same authority over them as the chief in the Aleut village has over the Aleuts? — A. As far as 266 * WICKEESHAM VS. SULZEK. authority is concerned, I don't know as any of the chiefs have authority over them. Q. Are the duties of tlie cliief in tlie Creole village the same as the duties of the chief in the Aleut village? — A. I don't know. Q. There are two distinct villages in the Afognak voting precinct, one known as Creole village and the other Aleut village? — A. Yes, sir. Q. In the selection of the chiefs in the Aleut village, does anyone but the Aleuts have a right to participate at this selection? — A. If the other end of the town wishes to participate In that matter they are at liberty to do so. Q. You mean to say that they have not separate chiefs? — A. Sometimes they have separate chiefs elected at separate meetings and sometimes they hold their meetings all together. Q. When did they have a meeting at which the Creoles assisted in the selec- tion of the Aleut chief, and who was the chief selected? — A. There was one instance where a Creole was a chief of the Aleut village. Q. You are what is termed a Creole, are you not? — A. Yes, using the term, I suppose I am. Q. Did you ever assist in the election of an Aleut chief? — A. No. Q. When did the Aleuts assist in the election of a Creole chief? — A. I can't I'ecall an instance. Q. Is it not a fact that on the 7th day of November, 1916, the Aleut villagfe had their own chief and th"^ Creole village had its own chief? — A. I think they did have. Q. Then you say even the Aleuts had a chief last fall at election day, and the Creoles also had a chief; is this correct? — A. I think it is. Q. Y"ou know it, do you not? — A. Yes. Recross-examination by Mr. Rustgard : Q. What is the reason they have two chiefs here at Afognak instead of only one? — A. I think ihey had some disagreement. Q. Do you know whether or not the people here at Afognak have only one chief instead of two? — A. I do not. Q. When asking you about the livelihood of these people living in Aleut town of Afognak, I omitted to ask you whether or not these people raised any ducks, any geese, any chickens, or barnyard fowls? Mr. DoNOHOE. Contestee objects on the ground that it is encumbering the record. A. Yes ; they keep chickens. Q. They have followed that industry a great many years? — A. Yes, sir. Mr. DoNOHOE. Contestee ob.iects on the ground stated above. Q. When the judges were asked to help the voter to mark the ballots, did all the judges see the ballot marked? — A. Yes. TESTIMONY OF IVAN ALHOON. CECIL R. KING, duly and regidarly sworn as interpreter. Direct examination by Mr. Donohoe. Q. What is your name? — A. Ivan Alhoon. Q. Where do you live? — A, In Afognak, Alaska. Q. Do you live in that part of town known as Aleut town? — A. Yes, sir. Q. Did you live there on the 7th day of November, 1916? — A. I guess so. Q. Do you speak the English language? — A. No. Q. Can you write the English language? — A. No; I can't write. Q. Are you an Aleut? — A. I have an Aleut mother and Creole father. Q. Did you vote on the 7th day of November, 1916, at the election of a Delegate from Alaska ? — -A. Yes ; I voted. Q. For whom did you vote for Delegate to Congress? Mr. Rustgard. Contestant objects to the cpiestion because the witness has a right to Iveep it his own secret as to whom he voted for, and there is so far nothing in the record to show that he is not a perfectly legal voter and a citizen of the United States. Moreover, I object to the testimony because the con- testant has not been notified liy contestee that he intended to take the deposition of this witness. Moreover, there is no allegation in contestee's answer that this witness voted illegally. Mr. DoNOHOE. Contestee desires to state that the notice served on James Wickersham on the 27th day of June, 1917, specifically stated that the deposition WICKEESHAM VS. SULZEK. 267 of this witness would be talven. Furtlier, that the evidence by deposition here- tofore taken establislies tliat tliis witness was an illegal voter, and therefore the secrecy of the ballot does not apply to him as his vote was an illegal ballot. A. I don't know. The papers were here, and I folded them up and put them in the ballot box. Q. Who told you to come to the election and vote? Mr. RusTGAED. Contestant objects to the question because it is an attempt on the part of counsel for Sulzer to show fraud on the part of the judges of elec- tion ; and no such fraud has been alleged, noi- has any notice of any character been given to the contestant that there was any intention to introduce evidence of that character. A. It is always understood that at the elections they all must come and vote, and that is the reason I came Q. Did John Taushwak tell you to come up and vote on election day? Mr. RusTGAED. Contestant objects to the question, because counsel is leading his own witness, and for the reasons stated in my previous objections. Mr. DoNOHOE. Contestee desires it to appear in this deposition that this wit- ness is a hostile witness, and therefore leading questions are permissible. A. He didn't tell me. Q. Did no one tell you to come up and vote on election day last Novem- ber? — A. When I saw them all coming up here to vote, I came on up with them, as it has always been customary to vote. Q. You do not know for whom you voted for Delegate to Congress? Mr. RusTGAED. Contestant objects ; witness has a right to conceal who he voted for. A. The fellow I asked to write for me ; I don't know whose name he voted for. Cross-examination by Mr. Ritstgaed : Q. How old are you? — A. I am past 40. Q. Have you a family? — A. I am married; my children are dead. AVe have an adopted child. Q. Have you a home here in Afognak? — A. Yes. Q. What do you work at? — A. In the summertime I fish for salmon. Q. Have you a cow? Mr. DoTs'OHUE. Contestee admits that he has cows, chickens, pigs, pigeons, geese, and other fowls and animals. Q. Were you born in Alaska? — A. Yes. Q. Where were you born? — A. I was born in Afognak. Redirect examination by Mr. Donohoe : Q. l^our home that you speak of is in the Aleut village?— A. Yes, sir; it is. Recross-examination by Mr. Rustgaed : Q. Do you speak Russian? — A. No. Redirect examination by Mr. Donohue : Q. The only language you speak is the Aleut? — A. Yes, sir. TESTIMONY OF IVAN DEEENOFF. Cecil R. King first duly sworn as interpreter, and the witnesses were there- upon interrogated through said interpreter. Direct examination by Mr. Donohue : Q. What is your name? — A. Ivan Derenoff. Q. Where do you live? — A. Afognak, Alaska. Q. What part of Afognak? — A. Creole Town. Q. Can you read the English language? — A. No. Q. Can you write the English language? — A. No. Q. Can you read and write the Russian language? — A. I can. I can read and write both. <5. Did you vote at the election held in Afognak on the 7th day of November, 1916, at which a Delegate to Congress from Alaska was voted for? — A. I did. Q. For whom did you vote for Delegate to Congress? Mr. Rustgaed. Contestant objects, because this witness has a right to keep it his own secret as to whom he voted for, and so far the evidence shows affirma- tively that he is a legal voter. Moreover, no charge has been made by the contestee in his answer that this witness has voted illegally. 268 WIGKEESHAM VS. SULZER. Mr. DoNOHOE. Contestee makes the same statement in response to this ob- jection that he made to tlie former objection in the last previous witness who was on tlie stand. A. James Wickersham. Q. What language are you now speaking to the interpreter in this examina- tion? — A. Russian, the only language I know. Q. You do not know the Aleut language? — Yes; I do know it. Q. You can speak the Aleut, then? — A. I talk with the Aleuts in Aleut, Russians in Creole, and speak a little English. Q. Who marked your ballot on which you voted for Delegate to Congress at the last election? Mr. RusTGAitD. Contestant objects ; this question is irrelevant, immaterial, and incompetent, and has no bearing on the issues set up in the answer of contestee. A. I have forgotten who it was. I asked some one who could read English. I held the pencil myself. Q. Did not John Taushwak mark the ballot for you? — A. I can't remember. Cross-examination by Mr. Rustgaed : Q. Where were you born? — ^A. Afognak. Q. How old are you? — A. I will be 66 years old in August. Q. You were baptized in the Russian Church when an infant? — A. Yes, sir. Q. Yoii have been a member of the Greek-Russian Church ever since? — A. Yes. Q. And you are now a member at the present time? — A. Yes. Q. Then all your life you have been a regular communicant of that church? — A. Yes. Mr. DoKOHOE. Contestee objects on the reason that the fact that he is a member of the Russian Church does not make him an Aiuerican citizen. It has not any bearing on his citizenship whatever. Q. Were your parents members of the Russian-Greek Church? Mr. DoNOHOE. Contestee objects for the same reasons set forth above. A. Yes, sir ; all of them. Q. Does your wife and children belong to the Russian-Greek Church? Mr. DoNOHOE. Contestee objects for the same reasons set forth above. A. Yes, sir. Q. You have a wife and children? — A. I have a wife and children, thi-ee sons and one daughter. The daughter is married. Two of my sons are working at Latouche and one at Uyak. Q. Your two sons at Latouche are working in the mine at Latouche now? — A. Yes. Q. You have your own home here in Afognak? — A. Yes. Q. Do you keep a gai'den and raise vegetables? — A. Yes, sir. Q. Do you keep a garden and raise vegetables, then, and also keep some cows, chicks, and pigs? — A. I have no pigs. Had a horse, but he died this year. Q. Have you and your parents before you kept cows and chickens as far back as you can i-emember? — A. Yes. Q. How long have you lived here in Afognak? — A. Since I was born. Q. How old are you? — A. I will be 66 years old next August. Q. How have you occupied your time on the island? — A. In tishing and hunt- ing. In former years I used to go hunting to different places on Cook Inlet and around as far as Uuga and other places where they had hunting stations. Q. Do the people here in Afognak have a chief? — A. I don't know. Accord- ing to the word that has been used formerly, he is a chief, as far as the word " chief " goes. Q. You mean he is chief only in name? — A. It is only the word " chief." He is really the foreman in any work that may be needed around the church or roads. He goes around, asks the people what he can do to help them, and if there is any work to be done on the road he goes and works the same as the rest of the men. Q. The chief works, then? — A. Yes; the chief Avorks with his hands on the road the same as anyone else. Q. Does he make any laws or issue any commands for the people here? — A. He don't make any laws. They have a meeting for that purpose, if there is any work to be done. Q. Who calls the meeting when they hold a meeting? — A. He calls it him- self ; he tells his next neighbor and they pass it along, one to another, and then, again, he goes to each house himself personally. WICKERSHAM VS. SULZER. 269 Q. And calls the meeting? — A. Yes. Q. At those meetings you come together and discuss what is to be done by the town? — A. Yes, sir. Q. Has the chief any authority to tell the people what to do, except to follow the will of the meeting? — A. That is all. They always arrange for that at the meeting. Q. Do you know where this custom came from, to hold town meetings and discuss the questions that are proposed at these meetings? — A. From Russia. Q. What is the reason that there are two chiefs here at Afognak? — A. They don't call him chief here ; they call him a " disetnik." Q. You call them by the Russian name? — A. Yes. Q. This foreman is called by the Russian name " disetnik " even by the Aleuts, is it not? — A. Yes, sir; that is the right name for them. Q. Will you state the reason why they have two " disetniks " at Afognak? Why is one " disetnik " not enough? — A. I don't know. Redirect examination by Mr. Donohoe : Q. The Aleuts call their chief " Tyoue," do they not? — A. Yes; they call him " Tyone." TESTIMONY BY GKEGOEI Y'AKANAK. CECIL R. KING, first duly sworn as interpreter, and the witnesses were thereupon interrogated through said interpreter. Direct examination by Mr. Donohoe : Q. State your name. — A. Gregori Yakanak. Q. Where do you live? — A. At Afognak. Q. What part of town do you live in? — A. In the Aleut village. Q. Are you the chief of the Aleut village of Afognak? — A. Yes, sir; I am. Q. Were you the chief at the time of the election in November last vear? — A. No. Q. Who was chief? — A. I misunderstood your question before. Yes ; I was chief. Q. Did you vote at the election held at Afognak on the 7th day of November,. 1916, at which there was a Delegate to Congress voted for? — A. Yes, sir. Q. Can you read or write the English language? — A. No. Q. Can you read or write the Russian language? — A. No. Q. Can you speak the Russian language? — A. No. Q. Can you speak the English language?— A. No. Q. The only language you do speak and understand is the Aleut language is it not?— A. That is all. Q. Who did you vote for at the election held on the 7th day of November, 1916. at which a Delegate to Congress was elected? Mr. RrsTGAED. Contestant objects to that question because witness has a right to keep it his own secret who he voted for. Further, for the reason that no allegation has been made by contestee that this witness cast an illegal ballot. A. I don't know ; I have forgotten. Q. What did you do when you came to the place where they were holding the election? Mr. RusTGAED. I object to the question as being irrelevant and incompetent and having no bearing on the case. A. I had somebody to write it for me and I then put it in the box. Q. Did you tell any person who wrote it for you who you wanted to vote for for Delegate to Congress? Mr. RrsTGAED. Contestant objects to that as being immaterial and irrelevant and having no bearing upon any of the issues of the answer of the contestee. A. I have forgotten. Q. Did John Taushwak write your ballot for you? — A. I have forgotten. Q. Did you tell the person who wrote on your ballot who you wanted to vote for for Delegate? Mr. RusTGABD. Contestant objects on account of the reasons set forth above. A. I have forgotten whose name I told him to put on the ballot. Q. Who told you to come up to the place where they were holding the election and vote? Mr. RusTGAED. Contestant objects on account of the reasons above set forth. A. No one. Everybody came up and I came along. Q. Did Mr. Petellin fix your ballot for you which you put in the box?— A. I don't know, but I think not. 270 WIOKERSHAM VS. SULZER. Q. Do you know any person that you voted for at that election? Mr. RusTGARD. Contestant objects on account of the reasons above set forth. A. I do not. Q. For whom did you vote for attorney general? Mr. RusTGAED. Contestant objects on grounds above set forth. A. The interpreter says he can not interpret this in the Aleut language. Q. For whom did you vote for senator? Mr. RusTGARD. Contestant objects on grounds above set forth. A. The interpreter says he can not interpret this in the Aleut language. Cross-examination by Mr. Rustgard : Q. How old are you?= — A. I am going on to 53 years of age. Q. You were born at Afognak? — A. No. I was born at Karluk, Alaska. Q. Have you a wife and children ? — A. My wife is dead. I have two children. Q. Have you your own home here in Afognak? — A. Yes. Q. Have you a vegetable garden? Mr. DoNOHOE. Contestee admits that witness keeps cattle, pigs, chicks, and ducks. A. I have. Q. Are you a Creole or pure Aleut? — A. I am an Aleut, but my mother was a Creole? Q. Is there such a thing as a real pure Aleut at Afognak? — A. I don't think there is any, but I don't know. Q. You belong to the Greek-Russian Church? — A. Yes. Q. You were baptized into that church when an infant? — A. Yes, sir. Q. Wei-e your parents communicants of the Greek-Russian Church? Mr. DoNOHOE. Contestee objects on the ground the fact that witness's parents or children being communicants of the Greek-Russian Church does not in any manner establish the claim of citizenship. A. Yes, sir. Q. How long have you been chief? — A. Fovu' years. TESTIMONY OF CHARLES PAJOMAN. Direct examination by Mr. Donohoe: Q. What is your name? — A. Charles Pajoman. Q. What is your occupation? — A. I keep a general merchandise store at Afognak. Q. What is your age? — A. I am 47 years old. Q. How long have you resided at Afognak? — A. Nineteen years. Q. You are well acquainted in and around the town of Afgonak and in the Afognak voting precinct? — A. I am. Q. How long have you been conducting your store at Afognak? — A. Since 1902. Q. During the time you have been in the store business yoii have had an op- portunity to learn of the educational qualifications of the natives in and around the town of Afognak as to whether or not they could read or write the English language? — A. I think I have. Q. I hand you the registration book kept at the election polls at the election held in the town of Afognak on the 7th day of November, 1916, at which a Dele- gate to Congress was voted for, which will show the names of 62 voters who cast their votes at said election. I now ask you to go over the list carefully and ex- amine the names and state how many of those 62 voters are able to read and write the English language intelligently. Mr. Rustgard. Contestant objects to the question as irrelevant and immaterial and not the best evidence, and for the further reason that the ability to read and write is not one of the qualifications of an elector. Moreover, the question is not defined to any particular individual charged with the crime of voting for Wickersham. A. Twenty-seven or 28. I find from an examination of the book that not more than 27 or 28 can read or write the English language. At the close of the testimony of the foregoing witnesses, taken at the village of Afognak, it was stipulated by and between James Wickersham, contestant, act- ing by and through his attorney, ,Tohn Rustgard, and Charles A. Sulzer, con- testee, acting by and through his attorney, T. J. Donohoe, that the signatures to the depositions of witnesses E. Petellin, Ivan Derenolf, Gregori Yakanak. Ivan Alhoon, and Charles I'ajoman be waived as the testimony was not transcribed WICKERSHAM VS. SULZEE. 271 and in order that the examination of other witnesses miglit be talven so that the parties could leave Kodiak about the 11th or 12th of July, 1917, to go to Seldovia, where further testimony is to be taken, and if they were unable to take the boat about the 11th or 12th of July they would be delayed at Kodiak for about 30 days and that the testimony taken will be transcribed before the notary public whom it is taken and when so transcribed submitted to counsel for each of the parties for correction, if any there be. The parties to the above-named contest, acting by and through their respective attorneys, hereby agree that the above and foregoing testimony of E. Petellin, Ivan Derenoff, Gregori Yakanak, Ivan Alhoon, and Charles Pajoman is a full and true and correct transcript of the sworn testimony of said witnesses taken at the time and place above stated, and they further agree that the said depo- sitions shall have the same force and effect as if they had been read to the witnesses after being transcribed and the witnesses had signed the same. John Rustgakd, Attorney for James Wickersliam, Contestant. T. J. DONOHOE, Attorney for Charles A. Siilzer, Contestee. CEKTiriCATE OF NOTARY. United States of Amekica, Territory of Alaska, third division, ss: I, Frank J. Hayes, a notary public in and for the Territory of Alaska, duly commissioned and sworn, residing at Yaldez, Alaska, do hereby certify that pursuant to the notice served on contestant. James Wickersham, at Auburn, King County, State of Washington, on the 27tli day of June, 1917, which said notice is attached to the deposition of Arthur Lang, and pursuant to the stipula- tion entered into on the 7th day of July, 1917, between James Wickersham, contestant, acting by and tlirough his duly accredited attorney, John Rustgard, and Charles A. Sulzer, contestee, acting by and through his duly accredited attorney, T. J. Donohoe, which said stipulation is attached to the foregoing depositions, personally appeared before me at the hour of 7.30 o'clock in the evening of the 8th day of July, 1917, at the public schoolhouse in the town of Afognak, Alaska, Julius Forsman, E. Petellin, Ivan Alhoon, Ivan Derenoff, Gregori Yakanak, and Charles Pajoman, witnesses on behalf of Charles A. Sulzer, con- testee. That each of said witnesses was by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and then and there gave his deposition as hereinbefore set forth upon the oral interrogatories propounded to each of said witnesses by T. J. Donohoe. attorney for Charles A. Sulzer, contestee, and upon the oral cross-interrogatories propounded to each of said witnesses by John Rustgard, attorney for James Wickersham, contestant ; that said deposi- tions after being taken in shorthand were typewritten by me and after being so typewritten were read and examined by each of the attorneys of the parties to the above-entitled contest and were approved by said parties to be a true and correct transcript of the testimony given ; that the deposition of Julius Forsman after being so typewritten was read to said witness and by him then and there subscribed and attested as being true in all respects and as being the testimony given by him ; that at the close of the taking of the testimony of the witnesses E. Petellin, Ivan Lahoon, Ivan Derenoff, Gregori Yakanak. and Charles Pajoman it was stipulated and agreed by and between James Wickersham, contestant, acting by and through his attorney, John Rustgard, and Charles A. Sulzer, con- testee, acting by and through his attorney, T. J. Donohoe. that the signatures of the last-named witnesses be waived, and when the testimony of said witnesses was transcribed it was carefully examined by the attorneys for each of the parties to said contest and agreed by said parties to be a true and correct transcript of the sworn testimony of each of said witnesses taken at the time and place above stated, and it was further agreed that the depositions of said witnesses, as hereinbefore set out. should have the same force ;ind eft'ect as if they had been read to the witnesses after being transcriljed and then signed and attested by each of said witnesses. Said stipulation is hereto attached to the deposition of said witnesses. In witness whereof I have hereunto set my hand and affixed my notarial seal this 9th day of July, 1917. [seal.] Frank J. Hayes, Notary Public for Alaska. My commission expires Maj' 19, 1921. 272 WICKEESHAM VS. SULZEE. DEPOSITIONS OF JOHN TAL'SHWAK AND MAFEEY AGICK. Be it remembered that, pursuant to the notice liereuuto annexed and the stipulation entered into on the Ttli day of July. 1917. between John Rust^ard. the duly and regularly accredited attorney of James Wickersham, contestant, and T. J. Donohoe. tlie duly and regularly accredited attorney for Charles A. Sulzer, contestee. at the hour of 6 o'clock in the muruing of the Sth day of July, 1917. at what is known as Malena Fishing Station, a place situated on ]Malena Bay, which said Malena B:iy is one of the small bays opening into ShelikofI! Straits, aboiit 30 miles from Afognak, Alaska, which place is also situated in the third judicial division of the Territory of Alaska, before me, Frank J. Hayes, a notary public in and for the said Territory of Alaska, personally appeared John Taushwak and Mafrey Agick. witnesses produced on behalf of Charles A. Sulzer. the above-named contestee in the above^entitled contest now pending before the House of Representatives of the Congress of the Sixty-fifth Con- gress, first session. Each of said witnesses were by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and were then and there examined and interrogated by T. J. Donohoe. attorney for the said Cliarles A. Sulzer, contestee, and by John Rustgard, attorney for the said James Wickersham, contestant, and said witnesses testified as follows : TESTIMONY OF JOHN TAL'SHWAK. Direct examination by Mr. Doxohoe : Q. State your name. — A. John Taushwak. Q. Where do you live? — A. Afognak. Q. Wherabouts in Afognak? — A. In the Aleut village. Q. Did you vote at the election held November 7\ 1916, at which said elec- tion a Delegate to Congress was voted for? — A. I did. Q. For whom did you vote for Delegate to Congress? !Mr. RrsTGAED. Mr. Taushwak. you don't have to tell who you voted for. The olijection is taken because this witness has a right to keep his own secrets who he voted for and. further, he should do so. Mr. DoxoHOE. I desire the record to show that counsel for James Wicker- sham told him that he need not tell whom he voted for. notwitlistanding the fact that the depositions heretofore taken establish the fact that this man was an illegal voter at said election. A. I voted for Wickersham. Q. Who told you to get the boys from the village and take them up to the polls and vote for Wickersham? Mr. RrsTGAKD. I object, for there is nothing in the record to show that anybody told him to get the boys from the village, nor is there anything to show that he did get the boys from the village to vote. A. I didn't know anything about that : the boys voted for themselves. Q. Did you sit in the place where they, were voting? — A. No. Q. Did you prepare any of the ballots or mark any of the ballots for the Aleut boys of tlie village? — A. They asked me who was Charles A. Sulzer and who was James Wickersham. and I told them who, and they marked the ticket themselves. Q. You helped seven or eight ? — A. Yes ; they couldn't read. Q. After they got the tickets from the judges they came to you and asked you to show which was Wickersham and which was Sulzer? — A. Yes, sir. Q. You showed them where to mark?^ — A. No; I showed tliem which was Wickersham and which was Sulzer. Cross-examination by Mr. Rcstgakd : Q. These boys couldn't read the ticket? — A. No : they couldn't read. Q. They asked you what name was Wickersham and what name was Sui- zer? — A. Yes. Some of them were for Sulzer, and some were for Wickersham. Q. You don't know how they voted? — A. No. Q. Thev marked their own tickets? — A. Yes, sir. Q. You didn't see how they marked them? — A. Some fellows marked Wicker- sham and some Sulzer. Redirect examination : Q. Who were the fellows that voted for Sulzer? Mr. Rustgakd. I object, for this man had no right to give away the secret, ana counsel has no right to inquire. Voters are required to be protected from the secrecv of the ballot. WICKEESHAM VS. SULZEE. 273 A. I don't remember. Q. How old are you?' — A. I am 28 years old. Q. Are you married? — A. No. Q. Do you speak Russian? — A. Yes. Q. Where were you born? — A. Afognak. Q. Do you speak Aleut? — A. I do. Q. Are you a pure-blooded Aleut? — A. I am half Aleut and half Creole. Q. Did you pay a poll tax in 1914? Mr. DoNOHOE. I object ; it is not proper cross-examination and has no bearing on the case. A. Yes, sir. Q. You paid a $4 poll tax?-— A. I did. Q. Who sent you the notice to pay it? — A. The judge at Kodiak. Q. As far as you know all of the people living in the Aleut village paid the poll tax; that is, those of proper age? Mr. DoNOHOE. I object, as it is not proper cross-examination and has no bear- ing on the case. A. I don't know. Q. Do you know of any other people living in the village who received notice to pay poll tax? Mr. DoNOHOE. I object on grounds stated above. A. I don't know who did. Some of the fellows did. TESTIMONY OF MAFREY AGICK. CECIL R. KING, first duly sworn as an interpreter, and the witnesses were thereupon interrogated through said interpreter. Direct examination by Mr. Donohoe: Q. State your name. — A. Mafrey Agick. Q. Where do you live? — A. Afognak. Q. Do you live in the Aleut village of Afognak? — A. I do. Q. Do you live in the Afognak village on the 7th day of November, 1916? — A. I did.' Q. Do you speak the American language? — A. No. Q. Do you read or write English? — A. No. Q. Do you read or Avrite Russian? — A. No. Q. Did you vote in Afognak at the election held there on the 7th day of November," 1916?— A. Yes. Q. Who did you vote for for Delegate to Congress from Alaska? Mr. RrsTGAKD. Mr. Interpreter, you may instruct the witness that he does not have to answer that question. Mr. DoNOHOE. As counsel for Charles A. Sulzer I demand of counsel for James Wickersham that he state his reason for advising the witness not to answer. Mr. RusTGARD. For the reason that the secret of the ballot should not be known by counsel for Sulzer or anyone else. Mr. DoNOHOE. It is contestee's claim that where it is once established that a person has cast an illegal ballot in an election it is proper and relevant to compel the witness who has cast the illegal ballot to tell for whom he voted. A. He voted for the new man. Q. Who took him to the polls? — A. He says everybody went up to the polls alone. Q. Who marked your liallot? — A. IVIy relative, .lohn Taushwak. Q. How do vou know .\ou voted for the new man? — A. The people said so. Q. As a matter of fact, don't you know you don't know for whom you voted ? — A. I don't know for whom I voted. At the close of the testimony of the foregoing witnesses, taken at said Malena Fishing Station, on Malena Bay, it was stipulated by and between James Vv'ickersham, contestant, actiri">- by and through John Rustgard, his duly and accredited attorney, and Charles A. Sulzer, contestee, acting by and through T. J. Donohoe, his duly accredited attfirney. (bat tlio signatures to the denosi- tions of said John Tanshwnk and M;ifrey A'Jick lie Wi'ived, as the testimony was not transcribed and in order that tlie examination of other witnesses might be taken, so that the parties could leave Kodiak about the 11th or 12th of .July, 1917, to go to Seldovia, where further testimony is to be taken, and if they were unable to take the boat the 11th or 12th of July they would be delayed at 13289—17 18 274 WICKERSHAM VS. SULZER. Kodiak for about 30 clays, and that the testimony taken will be transcribed before the notary public whom it is taken, and when so transcribed submitted to counsel for each of the parties for correction, if any there be. The parties to the above-named contest, acting by and through their respective attorneys, hereby agree that the above and foregoing testimony of John Taush- wak and Mafrey Agick is a full, true, and correct transcript of the sworn testimony of said witnesses taken at the time and place above stated, and they further agree that the said depositions shall have the same force and effect as if they had been read to the witnesses after being transcribed and the witnesses had signed the same. John Rl^stgakd, Attorney for James Wickershani, Contestant. T. J. DONOHOE, Attorney for Charles A. Sulzer, Contestee. CERTIFICATE OF NOTARY. I, Frank J. Hayes, a notary public in and for the Territory of Alaska, duly commissioned and sworn, residing at Valdez, Alaska, do hereby certify that pur- suant to the notice served on Contestant James Wickershani, at Auburn, King County, State of Washington, on the 27th day of June, 1917, which said notice with proof of service is attached to the deposition of Arthur Lang, and pursuant to the stipulation entered into on the 7th day of July, 1917, which said stipulation is attached to the depositions of Julius Forsman, E. Petellin, Ivan Alhoon, Ivan Derenoff, Gregori Yakanak, and Charles Pajoman, personally appeared before me on the 8th day of July, 1917. at the hour of 6 o'clock in the morning at what is known as Malena Fishing Station, about 30 miles from Afognak, Alaska, in the third judicial division of the Territory of Alaska, John Taushwak and Ma- frey Agick, witnesses on behalf of Charles A. Sulzer, contestee, that each of said witnesses were by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and then and there gave his deposition as hereinbefore set forth upon oral interrogatories propounded to each by T. J. Donohoe. at- torney for Charles A. Sulzer, contestee, and upon oral interrogatories pro- pounded to each by John Rustgard, attorney for James Wickershani, contestant. That upon the close of the testimony of each of the foregoing witnesses it was stipulated by and between each of the parties to the above-entitled contest, act- ing by and through their respective attorneys, that the signatures of the wit- nesses to their respective depositions be waived. That said depositions, after being taken in shortliand by me, were typewritten by me, and after being so type- written were submitted to and examined by the attorneys for each of the parties to the above-entitled contest, and it was then and there stipulated and agreed by and between the parties to said contest, acting through their respective at- torneys, that the foregoing transcript of the depositions of said witnesses is a full, true, and correct transcript of the sworn testimony of said witnesses taken at the time and place above stated ; and it was further agreed by said parties that said depositions shall have the same force and effect as if they had been read to the witnesses after being transcribed and signed and attested by said witnesses. Said stipulation is attached to the foregoing depositions. In witness whereof I have hereunto set my hand and affixed my notarial seal this 9th day of July, 1917. [SEAi,.] Frank J. Hayes, Notary Pnblic for Alaska. My commission expires May 19, 1921. STIPULATION. Whereas Charles A. Sulzer, the above-named contestee, did on the 27 th day of June, 1917, serve upon James Wickershani, contestant, at Seattle, in the State of Washington, a notice as required by section 108 of the Revised Statutes of the United States of his intention to take certain depositions of witnesses in his behalf at the village of Seldovia, in the Territory of Alaska, in the above-entitled contest ; and Whereas John Rustgard. the duly accredited attorney for the said James Wickersham in the matter of taking said depositions, and T. J. Donohoe, the duly accredited attorney of Charles A. Sulzer, contestee, in the matter of taking said depositions, arrived at the village of Seldovia on the 13th day of July, 1917, for the purpose of taking said depositions. WICKEKSHAM VS. SULZEE, 275 Now, therefore, it is stipulated and agreed by and between the said contestant and said contestee, acting by and through their respective attorneys, that the commencement of the taking of said depositions at the viUage of Seldovia may start on the 13th day of July, 1917, at the hour of 11 o'clocli a. m. at the office of the United States deputy marshal in the village of Seldovia. John Rustgard. t. j. donohoe. depositions of M. J. DOYLE, ANTON DOLCHAK, SAMUEL MEECUEOFF, GEEGORY FOXY, GEEGOEI KALUNGI, JOHN TALENAK, NICK SAKALOFF, SAVERIAN JAKALOFF. Be it remembered that pursuant to the notice hereunto annexed and the stipu- lation this day entered into between John Rustgard, the duly and regularly accredited attorney of James Wickersham, contestant, and T. J. Donohoe, the duly and regularly accredited attorney of Charles A. Sulzer, contestee, at the hour of 11 o'clock in the forenoon on the 13th day of July, 1917, at the town of Seldovia. in the third division of the Territory of Alaska, at the office of the deputy United States marshal, before me, Frank J. Hayes, a notary public in and for the Territory of Alaska, personally appeared M. J. Doyle, Anton Dolchak, Samuel Mercuroff, Gregory Foxy, Gregori Kalungi, John Talenak, Nick Sakaloff, and Saverian Jakaloff, witnesses produced on behalf of Charles A. Sulzer, the above-named contestee in the contest now pending before tlie House of Represen- tatives of the Congi-ess of the United States, Sixty-fifth Congress, first session. Each of said witnesses were by me first duly sworn to tell the truth, the whole truth, and nothing but the truth, and were then and there examined and inter- rogated by T. J. Donohoe, attorney for the said Charles A. Sulzer, and by John Rustgard, attorney for the said James Wickersham, and said witnesses testified as follovvs : TESTIMONY OF M. J. DOYLE. Direct examination by T. J. Donohoe: Q. What is your name? — A. M. J. Doyle. Q. How old are you? — A. Fifty-eight years old. Q. You are a citizen of the United States are you not? — ^A. I am. Q. Do you reside in the Seldovia voting precinct? — A. I do. Q. Did you reside in the said Seldovia voting precinct on the 7th day of November, 1916, at which time an election was held for the election of a Dele- gate to Congress? — A. I did. Q. Were you present at that election? — A. I was. Q. How long have you resided in and about Seldovia? — A. A little over two years. Q. Are you well acquainted with the residents in and about Seldovia, in- cluding the natives who reside in this vicinty ? — A. Yes, sir ; I know them all quite well, although still there might be many that I do not know. Q. I have here the registration book for the November 7, 1916, election which was kept at the Seldovia voting precinct and will ask you to examine the names on that book for the purpose of determining whether any of the voters that appear upon that book were what was commonly termed "Alaska native'^," or the people of the aboriginal race of Alaska. (Hands book to witness for inspec- tion.) — A. I can see quite a number of them. Q. I ask you to carefully go over this list and see how many of the names there are the names of parties that are called Alaska natives who voted at the election on the 7th day of November, 1916, in the Seldovia voting precinct. (Hands witness a list of names.) — ^A. That list covers all of them that I know of, at least a great many of them. Mr. Donohoe. I now offer in evidence the list of names taken from the regis- tration book identified by the witness and ask that it be marked "Exhibit No. 1 " of Mr. Doyle's deposition, and be made a part of the records of this con- test. 3Ir. RusTGAED. I object to the further examination of this witness for the following I'easons: First, there is no allegation in the contestee's answer of any particular facts which contestee proposes to prove, there is an allegation of fraud but no statement as to what facts constitute the fraud complained of, there is an allegation of unlawful voting but no allegation as to what the unlawfulness consisted of, there is therefore no allegation giving notice what contestee intends to prove, the depositions heretofore taken by contestee show 276 WICKERSHAM VS. SULZER. they are pure fishing expeditions conducted with the hope of finding some fraud, and this examination is obviously of the same purpose; second, there is no allegation in the answer that any particular individual voted unlawfully, nor any allegation of any particular act which is claimed to have rendered the voting illegal ; third, the notice of depositions was not served upon contestant in time to permit him to participate in the examination of witnesses, or even in time to give him an opportunity to write me on the subject or to make me copy of notice of depositions nor give me the names of the witnesses, but that all the time he was given to do was to wire me to board the steamship Evans and go with contestee's attorney to cross examine contestee's witnesses. These objects are made for the purpose not only of applying them to this witness, but to all witnesses hereafter to be examined and also to those who have already been examined. (Exhibit No. 1 received and marked as requested.) Q. Calling your attention to Exhibit No. 1, containing the names of Alaska natives who voted at the election November 7, 1916, in the Seldovia voting precinct, I will ask you where these people live in reference to the village of Seldovia? — A. As near as I knoAV the majority of them live on the hill by themselves. Q. Do you know whether these Alaska natives, including the ones who ap- pear on your Exhibit No. 1, have a chief? — A. I have always understood they have a chief. Q. What is his name? — A. I understand it is Aneisam. Q. Do you know of them having an assistant chief? — A. That is what I have always heard since I have been here, that Tim Baleshoff was assistant chief. Q. Of these 22 names which appear on your Exhibit No. 1, what number of them are unable to write their names? — A. There is quite a large number of them, probably a majority of them according to the registration book, a large number of them had to have theirs signed and their tickets made out for them. Q. On this registration book there are a number of names in which a cross is written; will you state what is meant by that cross? — A. The cross is meant for their name. Q. By whom was the cross marked ?-^A. It was marked by one of the judges of election, and the cross signifies that they are unable to write. « Q. And the crosses signifies they are unable to write? — A. Yes. Q. Of these 22 n.-imes which ajipenr on Exhilnt No. 1. what do you know about their ability to read the English language? — A. As far as I know none of them can read it. There are a few that can read and write but a majority can not. At least they told me they could not. Q. Do you know Mike Dolchok? — A. I do. Q. Is he a native? — A. At least I consider him one; he told me he was. Q, On December 5, 1916, were you present at the time that Mike Dolchok made an affidavit concerning his vote at the election of November 7, 1916? Mr. RtTSTGAED. I object to that as immaterial. A. I was. Q. Where is Mike Dolchok now? — A. The last I know of him he was at Goose Bay. Q. How far is that from Seldovia?— A. One hundred and sixty miles. Q. What is he doing? — A. He was working the last I heard of at the Bush- man cannery. Q. Mr. Doyle. I hand you a prepared afl^davit dated at Seldovia, Alaska, December 5, 1916, signed and sworn to by Mike Dolchok, and will ask you if that is the affidavit that was made at the time?— A. Yes, sir. Mr. DoNOHOE. We now offer this affidavit in evidence, ask that it be marked " Contestee's Exhibit No. 2 " of M. J. Doyle's deposition. Mr. RusTGAKD. I object to that as incompetent, immaterial, and irrelevant, and for the further reason that it is purely an ex parte statement; that the contestant is not given an opportunity to be present at the taking of the state- ment or an opportunity to cross-examine the witness Dolchok. Moreover, the affidavit is one that does not require to be sworn to, and the party who is claimed to have made the affidavit could not be prosecuted even if the affidavit were false. It is in no sense evidence. (Exhibit No. 2 received and marked as requested.) Q. Do you know Zakar Conkua? — A. I believe I know him, but am uncertain as to that name. WICKERSHAM VS. SULZER. 277 Mr. DoNOHOE. I hand you a paper styled an affidavit, dated Seldovia, Alaska, December 5, 1916, signed by Zalvar Gonkua, and aslc you if you was present when the statement was made? — A. I can't just remember just now. Q. Do you linow where tlie party is at this time? — A. I do not. Mr. DoNOHOE. We now offer this paper in evidence and ask tliat it be marked " Exhibit No. 3 " of tlie deposition of M. J. Doyle. Mr. RusTGARD. I make the same objection to this affidavit as to Exhibit No. 2 in the former affidavit. (Exhibit No. 3 received and marked as requested.) Q. Do you know Constantine Lul^o? — A. I do. Q. Were you present on the 5th day of December. 1916, when an affidavit was made by him concerning the election last November? — A. I was. Q. I hand you a paper and I will ask you if that was the affidavit Avhich was made? — A. It was. Q. Do you know where this man is now? — A. I do not. Q. Do you know whether he is absent from Seldovia? — A. I can't say. I think he is up fishing. Mr. DoNOHOE. We now offer in evidence the affidavit of Constantine Luko, and ask that it be marked " Contestee's Exhibit No. 4," of the deposition of M. J. Doyle. Mr. RusTGABD. I make the same objection to this affidavit as to the former affidavits like offered. Q. Were you present on the 5th day of December, 1916, when Steve E. Soro- kovekoff made a statement regarding his vote on last November? — A. Yes, sir. Q. I hand you the paper styled affidavit dated Seldovia, Alaska, December 5, 1916, and signed and sworn to by Steve E. Sorokovekoff, and will ask you if that is the statement he made in your presence? — A. Yes, sir. Q. Do you know where he is at this time? — A. I do not. He went to Seattle from here, I can't say Avhere he is now. Q. How long has he been away from Seldovia? — A. I don't know how long; he went away with Haddin ; I think it was in the middle of May. Q. He hasn't been around here since some time in May? — A. No. Mr. DoNOHOE. We now offer in evidence this affidavit and ask that it be marked " Contestee's Exhibit No. 5 " of the deposition of M. J. Doyle. Mr. RusTGAKD. I object on the same grounds as I objected to the former affidavits. (Exhibit No. 5 received and marked as requested.) Q. Do you know Irene Jacobson? — A. I do. Q. Were you present oni the 5th day of December. 1916, when Irene Jacobson made an affidavit in regard to her vote at the last November election? — A. Yes, sir. Q. I hand you herewith a paper marked "Affidavit," dated at Seldovia, Alaska, December 5, 1916. signed and sworn to by Irene Jacobson, and will ask you if you witnessed that signature? — A. Yes; I was present. Mr. DoNOHOE. We now offer in evidence this affidavit and ask that it be marked " Contestee's Exhibit No. 6 " of the deposition of M. J. Doyle. Mr. RusTGAED. I make the same objection to this affidavit as to the former affidavits introduced. (Exhibit No. 6 received and marked as requested.) Q. Since the November election have you had conversations with a number of the natives who voted at the election whose names appear on Exhibit No. 1 of your deposition as to whom they voted for for Delegate to Cngress? Mr. RtrsTGAED. I object to that as immaterial and irrelevant. ' A. Yes, sir. Q. Whom did they state to you they voted for for Delegate to Congress? Mr. RusTGAED. I object to that as immaterial and incompetent. It is hearsay evidence and statements made when parties were not under oath. The state- ments Avere made without giving contestant an opportunity to be present and cross-examine the parties who have made the statements. It is further incom- petent, for the reason that the voter has a right to keep his own secret for whom he voted, and it is therefore incompetent at this time to inquire into or probe by oral evidence what candidate each voter cast his vote for. A. Wickersham ; all of them. Q. Do you know " Shorty" Stoffer? — A. I do. Q. Was he present in the Seldovia precinct in the village of Seldovia on elec- tion day? — A. He was. 278 WICKERSHAM VS. STJLZER. Q. Had he been present for some time immediately previous to tlie election? — A. Yes, sir ; for several months. He was here all the winter before. Q. Did you know of him advocating the election of Mr. Wickersham for Dele- gate to Congress before election day? Mr. RusTGAED. I object to the question as immaterial and irrelevant. A. I never heard him personally say anything ; all I know is what the natives told me. Q. State what the natives told you in that regard. Mr. RusTGAKD. I object to that as general hearsay and incompetent and im- material. A. A few natives that I was talking to said Shorty Stoffer came to their house and asked them to come to his house before election and he would show them how to vote ; that he wanted them to vote for Wickersham. Q. Did you have a talk with Mike Dolchok on this subject? — ^A. I did; but only a short talk with him. I talked to him a little while in the pool room. He voluntarily talked to me about it. Mr. RusTGAED. I wish it understood that all this testimony is taken under my objections already made. Q. Did Mike Dolchok tell you that Stoffer had asked him to round up the natives so that they would vote on election day ? — A. Yes ; in them words. Q. State what he did say. — A. He said Shorty Stoffer asked him to do what he could for him ; he said Shorty Stoifer was a friend of his, and he did. Q. Do you know where Shorty Stoffer is at this time? — A. He is working at the coal mine. Q. How far is that from Seldovia? — A. Fourteen or fifteen miles. Cross-examination by Mr. Rx^stgaed : Q. Calling your attention to the registration book you have already referred to, you stated that those voters who could not sign their own names that their names were signed by one of the judges of election? — A. Yes, sir. Q. Is that not correct? — A. It is correct. Q. And those names so signed are further designated by a cross placed be- tween the Christian name and the surname; is that correct? — A. Yes, sir; that is correct. Q. Will you now examine that registration book and state how many names you find so designated? — A. Eleven. Q. There were 85 ballots cast altogether? — -A. Yes, sir. Q. Isn't it a fact that some of those who could not write their name in English marked their own ballots? — A. I don't know. I didn't take any particular notice. Q. Do you know how many of the voters had their ballots max'ked by the judges? — A. I couldn't say exactly how many. I know there was quite a few. Q. You were at one time a guard in the local jail here, were you not? — A. Yes, sir. Q. Under the direction of Deputy iNIarshal Cameron? — A. Yes, sir. Q. Mr. Cameron is now and for some time past has been the United States deputy marshal at this place?— A. Yes, sir. Q. You were engaged by him as guard at the jail? — A. Yes, sir. Q. What time did you commence that employment? — A. I really don't remem- ber ; it was some time in December ; around about the 1st of December ; perhaps the latter part of November. I don't remember. Q. How long after the election did you go to work at the jail? — A. I don't remember. It might have been a week and it might have been 10 days after election ; I don't fhink so ; I think it was closer to a week. I am not sure ; I can't remember. It was a short time after election, but just exactly when I can not say. Q. Your memory is a little vague on that point? — A. It is. Q. Who preceded you as jailer? — A. Mr. Albert Osness. Q. Don't yon remember that he quit the day after election? Mr. DoxoHOE. We object to this question on the ground that it is not proper cross-examination, and on the further ground that it is immaterial and irrele- vant and has no bearing on the questions involved in this case. A. No, sir ; I don't remember whether he quit or whether he was discharged ; I know nothing about it. Q. Previous to the election you were actively engaged in supporting Sulzer? — A. I was the precinct committeeman. Q. At Seldovia? — A. Yes; at Seldovia. WICKERSHAM VS. SULZEE. 279 Q. You were also one of the .iudges of election? — ^A. Yes, sir. Q. Who was Sulzer's watchex- at the polls? — A. Mr. Bogart. Q. Who selected Mr. Bogart to watch?— A. I believe Mr. Sulzer ; I think he told me that Mr. Sulzer asked him to take that part. Q. Mr. Bogart, the watcher for Sulzer, is the husband of Mrs. E. R. Bogart? — A. Yes, sir. Q. Mrs. Bogart is the lady whose name you have on the list, Exhibit No. 1, as an alien, a native, disqualified voter? — A. Yes. sir. Q. Is Mr. Bogart a citizen? — A. He is an American citizen, born in this country ; a white man. Q. You didn't challenge his wife? — A. We didn't have to challenge her. She signed the registry book. Q. You are at this time a candidate for game warden, are you not? — A. No; not'' exactly a candidate. I would take it if it was given to me. Q. You have your application in for the position? — A. I didn't put it in; some of my friends are circulating a petition. Q. Did you pass around the petition yourself among your friends? — A. No. Q. How' long did you serve as jailer? — A. Three days over three months. Q- What dal:e did you quit? — A. I can't remember the date. I never paid any particular attention. It was some time in April, but I never paid any particular attention. Q. You were present at the voting place when Mr. Osness voted? — A. I was. Q. You were at the ballot box when he put his ballot in the box? — A. I was. Q. You had your jackknife out at the time? — A. No; not that I know of. Q. You used* your jackknife at that time to shove the ballot down in the box? — A. Previously I had. We had a small box belonging to the schoolhouse, and it didn't hold the big ballots, and I had to use my knife to shove them down. Q. At that time did you punch a hole through Osness's ballot? — A. Not inten- tionally. I don't know that I did it. Q. You state that the names of these individuals whose names are on this Exhibit No. 1 are natives? — A. That is my understanding. Q. Don't they call themselves Russians? — A. No; natives. I never heard them called Russians? Q. Do you know they speak the Russian language? — A. Not that I know of. Q. You do not know what they talk? — A. No. Q. You don't know whether they are Russians, Indians, or people of mixed blood? — A. Only what they tell me themselves. Q. Well, you had spoken to Mr. Lowell about it, had you not? — A. No. Q. Lowell looks pretty white, does he not? — A. Yes; but we do not classify Lowell with the balance of the natives here. Q. Does he talk English? — A. Yes, sir. Q. Isn't that the Lowell you have in the list of " Exhibit No. 1 "? — A. Yes, sir. Q. He is not classed as a native, then? — A. No; not in my estimation as a native : that is, he is not a full-blood. Q. Has Mrs. J. Cleghorn a husband? — A. Yes, sir. Q. What is he?— A. A white man. Q. An American citizen? — A. Yes, sir; I am quite sure. Q. Has Mrs. Sallie Bowen got a husband? — A. She has. Q. Is he a white man? — A. No ; he has breed in him ; I think he is a Russian. His mother speaks Russian. O. Has Irene Jacobson a husband? — A. I think so ; she has taken the name of that man. Q. Is he a white man? — A. He is. Q. Is he a citizen? — A. I have been trying to find that out myself. He never votes ; at least he hasn't since I have been here. Q. Do you know Lizzie Block? — A. Yes, sir. Q. Is she married to a white man? — A. Yes, sir. Q. Do you know Mrs. Ritchie? — A. I do. Q. Is she married to a white man? — A. She is supposed to be married to a white man. as she has taken his name. Q. Mrs. Cleghorn's husband worked for the United States Government at the time of the election? — A. I believe he did. Q. Did you mean to say that Mrs. Cleghorn told you that she voted for Wickersham? — A. I never said anything of the kind. I never talked with the lady on the election. 280 WICKEESHAM VS. SULZER. Q. As a matter of fact, you know that when she came into the polling place she told j'ou and the other judges of election that her husband told her to vote for Sulzer? — ^A. I never heard her remark any such thing. Q. Do you know Steve Sorokoff? — A. Yes, sir. Q. Do you wish to be understood as swearing to the fact that he is an Indian; is he a native? — A. I can't define that. Q. What do you understand by a native? — A. I am at a loss to find out what a native is myself. I have applied to the prosecuting attorney. Mr. Spence. and asked him to define them. I got no satisfaction. 0. This Sorokoff looks like a white man? — A. I don't think so. Q. Don't you say there is a large percentage of white blood in liim? — A. No. Q. Do you know what language he speaks? — A. I can't say whether it is Russian or Indian. Q. What does he work at? — A. General labor — anything he can find to do. Q. Where is he working at the present time? — A. I can't say; he was in Seattle the last I heard of him. Q. When did he go thei-e? — A. In the month of INIay of the present year. O. Can he read or write? — A. I can't say as to that; I can't remember. Q. Did he frequently go to Seattle, as far as you know? — A. No; I think it is the first time. He went out as a deck liand on the boat. Q. Do yoii know Anton Dolchak? — A. I do. Q. How long have you known him? — A. A couple of years. Q. Do you know whether he speaks Russian, English, or any other lan- guage?- — A. He speaks English quite plain, but as to the other languages I do not know. Q. Do you know his age? — A. I do not. Q. Do you know whether he reads or writes? — A. I do not. Q. Do you know Samuel Mercuroff? — A. I do. Q. How old a man is he? — ^A. About 45 or 50. Q. Is he here now? — A. Yes. Q. What is his business? — A. He is a general roustaboiit — fishing, logging, and general work. Q. Is he a man of family ? — A. l"es ; he has a wife and one child, I believe. Q. Do you know what Innguase he speaks? — A. No; he speaks some foreign Iangu:Tge; can't say whether it is Indinn or Russian. Q. Does he spenk any English? — A. No. Q. Do yoii know Gregory Foxy? — A. Yes. Q. Where is he now? — A. Here in Seldovia. O. How old a man is he? — A. I can't say; think about 60. Q. What does he work nt? — A. General work, fishing during fishing season, and hunting; also logging; any work he can get. Q. Do you know Constantino Loko? — A. I do. Q. Does he live in Seldovia? — A. He does. Q. Is he here fit the present time? — A. I think not. Q. Where is he? — A. He is at Baiieloff Bay at the present time. Q. How far is that from here? — A. About 7 or 8 miles. Q. How long has he been there? — A. I can't say. O. On this list. Exhibit No. 1. is it intended that the first nnme appenring on the list is the surname and the last name is the Christian name? — A. The first name occurs last, until you get down to the bottom. Q. Referring to Gregory Kalungi. is he here? — A. I can't say ; I don't know. Q. How long since you have seen him? — A. I can't say; it may have been two or three months. Q. How old a man is he? — A. I can't say ; it is hard to tell their age. Q. Have you seen him since election ? — A. Oh, yes ; very frequently on the beach. Q. What language does he speak? — A. I can't say; it is either Russian or Indian. Q. What language do you spenk to him? — A. I don't speak to him nt all. Q. What language did lie use when he told you that he voted for Wieker- shnm? — A. English. He can of course speak a few words of English. Q. Do you think he is a pure-blooded Indinn? — A. I can't say. Q. He may be pure Russinn, then? — A. Yes; he may be. Q. And that is true of all the rest of them on the list? — A. Yes. Q. As far as you are concerned, when you speak of the Indians in the village you speak about the native population of the town? — A. Yes, sir; I should say that is what it consists of. i WICKEESHAM VS. SULZEE. 281 Q. You don't refer to any particular race? — A. No; I don't. Q. How large a percentage of the population over the age of 21 years, resid- ing at Seldovia, were l)orn here? — A. I should say in my estimation it would not be 10 per cent ; there are a great many of the natives who have been born here. Q. Many of those you class as natives are born on Kodiak Island or on the Kodiak Island group, are they not? — A. Yes, sir. Q. Is there a Greek-Russian church in this place? — A. Yes. sir. Q. As far as you know, all those who are classed as natives attend services in that church whenever services are held? — A. The majority of them, I believe, do. Q. Do you know George King? — A. I do. Q. What is his business? — A. He is a fisherman. Q. Do you know where he was born? — A. To the westward, somewhere around Unalaska. Q. You say at Unalaska? — A. Yes; somewhere around there. Q. Do you know what language he speaks? — A. I do not. Q. Does he speak English? — A. He does. Q. For aught you know, a foreign language which he speaks, if any, is Russian? — A. It may be. Q. Where does Mrs. King live? — A. In Seldovia. Q. Where was she born? — A. To the westward also; they came, here together. Q. How long since they came from the westward? — A. I can't say. Q. Does she speak English? — A. Yes. Q. Does she read and write English? — A. I can't say. Q. Does George King read and write English? — A. I can't say. Q. You can not sav whether Mr. or Mrs. King read and write Russian? — A. No. Q. Do you know Agnes Barnes? — A. I do. Q. Where does she live? — A. In Seldovia. Q. Her husband is a white man? — A. Yes, sir. Q. Where was she born? — A. I don't know. Q. She may also have been born in Unalaska for all you know? — A. Yes, sir. Q. Does she speak English? — A. Yes: she speaks some English. Q. Does she read and write the English language? — A. I can't tell. Q. If she speaks a foreign languge, may it not be the Russian language? — A. It might be. Q. Does she read or write Russian? — A. I can't say. Q. Where does J\Irs. Ritchie live? — A. In Seldovia. Q. Where was she born? — A. I can't say where she was born. I don't know. Q. Does she speak English? — A. Yes. Q. Does she read and write English? — ^A. She writes some English, but don't knew whether she reads much English or not, but it is safe to assume that she can read her own writing. I have seen her writing, but never heard her reading. Q. If she speaks any foreign languge, may it not be Russian? — A. It may be. Q. This I presume you wouldn't know? — A. No. Q. Do you know whether she reads or writes Russian? — A. I don't know. Q. Where is Sallie Bowen living? — A. In Seldovia. Q. Where was Sallie Bowen born? — A. I heard she was born to the west- ward ; I don't remember just where. Q. When you say to the westward you mean Kodiak Island or the Unalaska country? — A. Yes, sir. Q. Does she speak English? — A. Yes, sir. Q. Does she read or write English? — A. I can't say as to that. Q. Does she read or write any other langiiage? — A. I can't say. Q. Does she speak much English? — A. Very little. Q. Where was Mrs. Cleghorn born? — A. I can't say; around this country; some place in close by here. Q. Does she speak English? — A. Some, but very little. Q, Do you know whether she reads or writes English? — ^A. I do not. Q. Do you know what foreign language, if any, she speaks? — A. I do not. I heard she was a full-blooded Indian. Q. Does she not speak Russian? — A. She may. Q. Do you know Mrs. Bogard? — A. I do. Q. She lives in Seldovia? — A. Yes. Q. Where was she born? — A. I do not know. 282 WICKERSHAM VS. SULZER. Q. She may have been born to the westward around Kodiak Island or Unalaska, may she not?^ — -A. Yes. Q. Does she speak English? — A. Yes; .some. Q. Does she read or write English? — A. I can't say as to that. Q. Do you know whether she speaks Russian? — A. I couldn't say. I have heard her speak some foreign language, but I do not know what it was. Q. Where is Irene Jacobson? — A. She lives in Seldovia. Q. Where was she born? — A. I don't know. Q. Do you know whether or not she was born to the westward? — A. I think she was. Q. Does she speak English? — A. Yes. Q. Does she read or write English? — A. I don't think so. Q. The foreign language she speaks may be Russian? — A. It may be; I don't know. Q. Do you know whether she speaks or writes Riissian? — A. I do not. Q. Do you know where Steve Soroskinoff was born? — A. I believe he was born at Kodiak. Q. How old a man is he? — A. I should judge he is close to 30. Q. Does he speak English? — A. Yes. Q. Does he write English? — A. I can't say. Q. Does he read English? — A. I can't say. Q. Do you know whether he signed his own name to the affidavit or not? — A. To this affidavit here? Mr. DoNOHOE. I ask that the affidavit be submitted to the witness. A. I don't remember. Q. Can you state without making an examination of Exhibit No. 5 whether or not Steve Sorosnikoff signed the affidavit personally? — A. I couldn't now, even by examining it. Q. You have personally no recollection of his signing that affidavit? — A. I certainly do not remember it. Q. Do you remember where you were at the time you signed your name as a witness? — A. I was in this room. Q. Who else were present at that time? — A. Marshal Cameron, Mrs. Chris- tiansen, the notary public. I believe that is all. I can't remember any more. Q. Are you sure Mrs. Christiansen was here then? — A. I am quite sure she was here. Q. What language does she speak besides English? — A. I can't tell. <}. Is she what you call a native? — A. Yes; partly; part Indian and part white. Q. Where was she born? — A. I don't know. Q. She is the postmistress at this place? — A. Yes, sir. Q. How long has she held that position? — A; Since her father's death about three years ago. Q. Did you testify as to where Soroskinoff was at the present time? — A. I thought he was in Seattle. Q. Where was the affidavit of Constantine Luko signed? — A. In here in this room. Q. Who were present at the time this affidavit of Constantine Luko's was signed?— A. Myself, Marshal Cameron, and I believe Mrs. Christiansen. Q. Did Luko sign the affidavit himself? Mr. DoNOHOE. We object that the affidavit should be submitted to the witness for examination before he is required to testify to it. A. I can't say. Q. Do you know whether Luko can read or write English? — A. I can't say. Q. Do you know what foreign language, if any, he speaks? — A. I do not. Q. Do you know whether he can read or write Russian? — A. I do not. Q. Where was the affidavit of Zakar Chonka signed?— A. In this office here. ~Q. Which was in what is called the office of the deputy United States marshal? — A. Yes. Q. Who were present at the time that affidavit was signed?— A. The same parties. Q. Who were they? — A. Myself, Mr. Cameron, the deputy marshal, and Mrs. Christianson. Q. Was anybody else present? — A. I can't remember. Q. Where was Chonka born? — A. I can't say. Q. Can he read the English language? — A. I don't think so. WICKEESHAM VS. SULZEE. 283 Q. State whether or not he signed the affidavit in liis own handwriting. — A. I can not remember. Q. You do not Ivnow what foreign language he spealis? — A. No. Q. For aught you lallot? Mr. RusTGARD. I make the same objections as to the other and ask the interpreter to inform the witness that he don't hove to answer the question. Mr. Donohoe. If witness refuses to answer a legal question he is subject to a fine of .$25. The interpreter may so inform the witness on this point. A. I will never go and vote again. Q. Has anybody spoken to you to-day about -the testimony you are to give at this hearing? — A. No. Q. Did you vote for Lena ?Jorrow T.ewis for Delegate to Congress? Mr. RUSTGARD. I again make the same objection and ask the intei'preter to instruct the witness that he does not have to answer. A. (No ansM-er.) Q. Did you vote a,t the November 7, 1016, election for James Wickersham for Delegate to Congress? Mr. RusTGARu. I ask that the interpreter inform the witness that he does not have to tell for whom he voted. WICKERSHAM VS. SULZER. 287 A. He saySi lie is afraid they will make it bad for him if he don't tell who he voted for. Q. Did you vote for James Wickersham for Delegate to Congress at the election held November 7, 1916? — A. Yes. Cross-examination by Mr. Rustgakd: Q. Where were you born? — A. English Bay. Q. Where is that? — A. Down below here. Q. Do you speak Russian? — A. Yes. Q. Have you been speaking Russian to the interpreter? — A. Yes. Q. You are speaking Russian now, when you are testifying? — A. Yes. Q. Do you read or write Russian? — A. No. Q. How long have you been living at Seldovia? — A. I don't remember. I was a very small boy when I came here. Q. Is your father and mother living"? — A. No; they are both dead. I have no relations, either mother, father, sister, or brother. Q. Were you baptized in the Russian-Greek Church when an infant? — A. Yes. Q. You are a regular communicant of the Greek-Russian Church? — A. Yes, sir. Q. Your father and mother were communicants of the Greek-Russian Church?— A. Yes. Q. Your forefathers, as far as you liave heard of, for a century or moi-e, were communicants of that church ?^ — A. Yes. Q. Have you a home of your own in Seldovia? — A. No. Q. W^ho do you live with"? — A. Audrey Tauchak. Q. Is Andrew married? — A. He is a widower. Q. What do you do?— A. I am working at the cannery now. Q. You marked your own ballot v\-hen you voted at election? — A. I did it myself. Q. You said that on election day you got coffee and cake at the house of Shorty Stoffer?— A. Yes. Q. Is that the first time you had coffee and cake there? — Yes; just the one time. Q. Don't the natives always treat each other to coffee aud cake when they visit each other? — A. Yes; that is the custom. Q. Do you remember who were the judges of election? — A. Yes. Q. When you went in to vote did the judges of election give you a ballot or piece of paper to vote? — A. Yes ; they gave me a piece of paper. Q. And that is the paper you voted? — A. Yes. They gave me the paper to mark, and I marked it. Redirect examination by Mr. Donohoe : Q. Shorty Stoffer is not a native, is he? — A. No ; he is a white man. Q. Y'ou never had visited Shorty Stoffer's house before election day, had you? — A. No. Q. Did you go back to Shorty Stoffer's house after you voted? — A. No. TESTIMONY OF GREGORY FOXY. MRS. ANNIE CHRISTIANSON, first duly sworn as interpreter, and the wit- ness was thereupon interpreted through said interpreter. Direct examination by Mr. Donohoe: Q. What is your name? — A. Gregory Foxy. Q. Where do you live? — A. In Seldovia. However. I am up the bay putting up fish now. Q. Did you live fit Seldovia on the 7th day of November, 1916, when an elec- tion was held for the election of a Delegate to Congress? — A. Yes. sir. Q. Do you live in that portion of the villege of Seldovia known as the native portion ot the village? — A. I live up on the hill away from everybody else. I don't live among the natives. Q. Do you read or write the English language? — A. No. Q. Do you read or write the Russian language? — A. No. Q. Do you read or write any other language? — A. No. Q. Do you speak the English language? — A. Some; I understand very little. Q. Did' you on the morning of the election of the 7th day of November, 1916, go to Shorty Stoffer's cabin?— A. Yes. 288 WICKEESHAM VS. SULZEB. Q. Who told you to go up there? — A. Mike Dolchok. Q. What did Mike Dolchok tell you to do? — A. He told me I must come up here to the election and vote. Q. Are you a native? Mr. RusTGAED. I enter the same objection which I have entered at the begin- ning of Mr. Doyle's testimony. A. Yes. Q. What did you do on the morning of election when you reached Shorty Stoffer's cabin?— A. I didn't do anything. Q. Did you have coifee and cake at Shorty Stoffer's cabin? — A. Yes. Q. What did Shorty Stoffer say to you about voting? — A. He told me to have some coffee. Q. Did he show you how to vote and who to vote for? — A. No; Mike Dolchok showed me. Q. What did Mike Dolchok tell you about who to vote for? — A. He told me to put in ballot like he marked. Q. Did he tell you to vote for Wickersham? Mr. RusTGAED. I object to that as immaterial, irrelevant, and incompetent. Mr. DoNOHOE. Counsel for contestee makes the statement that this witness is unable to understand the English language, and that, therefore, it is neces- sary to put direct questions to him. A. Yes. Q. Did you vote that day? — A. Yes. Q. Did Mike Dolchok go with you to the polls, where they were voting? — A. Yes ; Mike went with me over there. Q. Did Mike mark your ballot? — A. Mike showed me where to vote. Q. Did you vote for .James Wickersham for Delegate to Congress? Mr. RusTGAKD. I n ake the same objections to this question as to former ques- tions, and ask the interpreter to inform the witness and instruct him that he does not have to answer the question or to tell anybody for whom he voted. Mr. DoNOHOE. You will explain to the witness through intei-pretation that this is the attorney for James Wickersham, the contestant, who is instructing him not to answer, and you will also tell him that unless he answers a legal question he is subject to a fine of $25. Q. I again repeat, did you vote for James Wickersham for Delegate to Con- gress? — A. Yes. Q. What did Mike Dolchok tell you on the morning of election about getting all the boys in the native village to vote for Wickersham? — A. He asked them to come down there aud vote. Q. How many of the natives from the village did Mike get to go to Shorty Stolfer's cabin the morning of election? — A. I don't know. Q. After you voted did you go back to Shorty's cabin that day? — A. No; I was only there once. Cross-examination by Mr. Rustgaed : Q. When you went to the voting place to vote, you got the ticket that you voted from the judges? — A. Yes; I got a paper from them there. Q. That was a white paper, was it not? — A. Yes. Q, It had the names printed on it? — A. Yes. Q. Did you mark that ballot yourself? — A. Yes. Q. Mike was with you to the polls? — A. Yes, sir; he was there. Q. Down at Shorty Stoffer's Mike had a yellow paper, did he not ? — A. Y'^es. Q. And he showed you how to vote? — A. Y'es. Q. He told you at that time you would get a white paper from the judges of election to vote? — A. Yes. Q. Did you have in your pocket a copy of that yellow paper which you used down at Shorty Stoffer's \yhen you learned how to vote? — A. Yes, sir; I had one with me. Q. Who were the judges of election? — A. I don't remember. Q. When you came into the place where you voted, the judges of election gave you a white paper, like the yellow one you had in your pocl^et? — A. Yes. Q. And then you \\-ent into the voting booth and pulled out tlie yellow paper and marked the white one accordingly? — A. Yes, sir. Q. Mike was with you then and saw you do that? — A. No. Q. Mike didn't see that white paper after you marked it? — A. No; he never .saw it. WIOKEKSHAM VS. SULZEK. 289 Q. And you then gave the white paper to the judges, who put it in the box? — A. I put it in myself. Q. Where were. you born? — A. Seldovia. Q. Are you a Russian? — A. No; I am a Kenai. Q. Is that different from an Aleut? — A. Yes; it is a different race. Q. The Kenais speak a dilferent language from the Aleuts? — A. Yes, sir. Q. Do you speak Russian? — A. A little. Q. Are you speaking Russian now when you are testifying? — A. I am. Q. How old are you? — A. I think I am 50 years old. Q. Were you baptized in the Greek-Russian Church when an infant? — A. Yes, sir. Q. You are a regular communicant of the Greek-Russian Church now? — A. Yes, sir. Q. Were your parents also regular communicants of the Russian-Creek Church? — A. Yes, sir. Q. And your ancestors as far back as 100 years were regular communicants of the Greek-Russian Church? — A. Yes, sir. Q. You have a Greek-Russian Church here at Seldovia? — A. Yes. Q. The services in that church are conducted in the Russian language, are they not? — A. Yes, sir. Q. What do you work at? — A. Principally fishing. Q. Do you work at anything else? — A. Anything 1 can find to do, logging or anything else. Q. Have you a family? — A. I have a wife and son. Q. You have a home of your own here in Seldovia? — A. Yes, sir. Q. Do you raise vegetables? — A. Yes. Q. Have you any cattle? — A. No. Q. Any chickens ?^A. No. Redirect examination by Mr. Donohoe : Q. Do you know anyone else you voted for besides James Wickersham? — A. No. Q. You do not know for whom j'ou voted for attorney general — A. No. TESTIMONY OF SAM MERCUROFF. MRS. ANNIE CHRISTIANSON was first duly sworn as interpreter, and the witness was thereupon interrogated through said interpreter. Direct examination by Mr. Donohoe : Q. State your name. — A. Sam Marcurotf. Q. How old are you? — A. I don't know how old I am. Q. Are you a native? — A. I am. Q. What tribe do you belong to? — A. I am a Kenai. Q. Where do you live? — A. Seldovia. Q. Were you in Seldovia on the 7th day of November last when an election was held for the election of a Delegate to Congress from Alaska? — A. Yes; I was here. Q. Do you live in that part of the village of Seldovia known as the " native village " ? — A. I don't know what they call it ; I live here in Seldovia. Q. Do you live close to the church? — A. No. Q. Whereabouts? — A. Right up on the hill. Q. Did you vote at the election held November 7th, 1916? — A. I did. Q. Did Mike Dolchok come to you on the morning of election and tell you to go down to Shorty Stoffer's cabin? — A. l^es, sir. Q. Did you see Shorty Stoffer when you got down to the cabin? — A. He was home. Q. Did Shorty Stoffer give you some coffee and cake before you went up to vote? — A. I had two little cookies and a cup of coffee. Q. Did Mike Dolchok or Shorty Stoffer tell you who to vote for for Delegate to Congress ? . Mr. RusTGARD. I make the same objection as I did at the beginning of Mr. Doyle's testimony. A. Shorty Stoffer never said anything to me? Q. Did Mike Dolchok tell you how to vote?— A. Yes. 132S9— 17 19 290 WICKEESHAM VS. SULZEE. Q. Who did he tell you to vote for? — A. Mike Dolchok i^nve me a piece of paper and told me to vote it the way it was marked. Q. Did Mike go with you to the polls? — A. No ; I went alone. Q. Did you vote for James Wickershnm for Delegate to Congress? Mr. Rtjstgaed. I make the same objections to this as I have made to former questions, and I also instruct the interpreter to inform the witness that he does not have to answer. Mr. DoNOHOE. Interpreter, explain the question and that this is the attorney for James Wicker sham, the contestant, who is instructing him not to answer, and you will also tell him tliat unless he answers a legal question he is subject to a fine of $25. A. When I came down to the voting precinct they gave me a white piece of paper and it was marked like the yellow one. Q. You don't know, then, who you voted for? — A. No; I couldn't read the paper. Q. You don't know the names of anyone whom you voted for on that ticket? — A. No. Q. Mike gave you a yellow piece of paper down at Shorty Stoffer's cabin and told yoii to mark the ticket you got from the judges in the same way? — A. Yes. Q. And you didn't know at the time whom you voted for? — A. No. O. You mean vou don^t know the name of a single person you voted for? — A. No. Q. Do you read or write the English language? — A. No. O. Do you read or write the Russian language? — A. No. O. Do you read or write any language? — A. No. Q. Do you speak the English language? — A. No ; I don't. Cross-examination by Mr. Rustgard : O. Where were you born? — A. Seldovia. O. Are your parents, or either of them, living? — A. No; they have been dead a long time. Q. Were both of your parents Kenais? — A. Yes. sir. Q. Do you speak the Russian language? — A. Yes; I luiderstand a great denl of it. Q. What language are yoii speaking now when you are testifying? — A. Rus- sian. Q. Don't you snepk Eu'rlish also? — A. No. Q. You speak some English, don't you? — A. Yes; a few words which are eosy. I can not hold a conversation. Q. Were you baptized in the Greek Russian Church when an infant? — A. Yes, sir ; I was. Q. You have been a regular communicant of the Greek Russian Church ever since? — A. Yes. sir. Q. Your parents, ns far as vou know, were bnptized in the Greek Russian Church when they were infants? — A. Yes, sir. Q. And your ancestors, as far bock as 100 years or more, were baptized in the Greek Russian Church? — A. Yes. Q. What do you work at? — A. I work some in the cannery, fishing, and whatever I can get to do. O. Yo\i are a carpenter, are you not? — A. Yes; I can put up a small building. Q. Do you have a garden and raise some vegetables? — A. Yes, sir. I laave a small garden. Q. Do you have any cattle? — A. No. Q. Do you have any chickens? — A. No. Q. Hnve you a family? — A. Yes; I have a wife and three children. Q. How long have you been married? — A. About 13 years; tliat is, to my second wife. I have one son by her. Q. How long did you and your first wife live together? — A. Fourteen years. Q. Your family are commiinicants of the Greek Russian Church? — A. Yes. Q. Who sent for you to come up here to-day and testify — A. I was down at Antone's store, and a man that lived across the store told me to come up. Q. Mr. Doyle was the man who told you to come up? — A. Yes, sir. Q. Did Mr. Doyle ever ask you whom yovi voted for? — A. No. Q. Did you ever tell Mr. Doyle who you voted for? — A. No. Q. Did Doyle tell you to vote for anybody at the election? — ^A. No. WICKERSHAM VS. SULZER. 291 TESTIMONY OF JOHN TALENAK. MRS. ANNIE CHRISTIANSON first duly sworn as interpreter, and the witness was tliereupon interrogated through said interpreter. Direct examination by Mr. Donohoe: Q. What is your name? — A. Jolm Talenak. Q. State how old you are. — -A. I am 38 years old. Q. Do you read or write the English language? — A. I can write some. Q. Do you read or write the Russian language? — A. Yes; when I preach in the church I have to use it. Q. Do you speak the English language? — A. No; I can't speak English. Q. Where do you live? — A. Seldovia. Q. Did you live in Seldovia on the 7th day of November, 1916, at which time a Delegate to Congress was voted for? — ^A. I did. Q. Did you live in that portion of the village of Seldovia commonly known as the " native village " ? — -A. Yes, sir. Q. Are you an Alaska native? — A. I am. Q. What is the name of your tribe of people? — A. Kenais. Q. Did you vote at the election held on the 7th day of last November, 1916? — A. I did. Q. Were you down to Shorty StofCer's cabin before you voted on election day? — A. Yes; I was down there first. Q. Did Mike Dolchok ask you to go down to Shorty Stoffer's before you voted? — A. Yes; he asked me to go. Q. And Shorty Stoffer gave you coffee and cake when you went down there on the morning of election before you voted? — A. He just gave me a cup of coffee but he didn't say anything., Q. Did Mike Dolchok say anything to you as to whom you should vote for for Delegate to Congress? — A. He told me how to mark my paper and where to mark. Q. Did you afterwards go up to the voting place and vote? — A. Yes, sir; I went right up from Shorty Stoffer's place. Q. Did Mike Dolchok go with you to the voting place? — A. No. Q. Did Mikfr Dolchok give you a ballot with the places marked where to vote? — A. Yes, sir. Q. Did you mark your ballot the same as Mike had told you to? — A. Yes. Q. Did you vote for James Wickersham for Delegate to Congress? Mr. RusTGAED. I object on same grounds as made to previous objections and ask the interpreter to instruct the witness that he does not have to tell for whom he voted. A. I don't know. Q. Do you know the name of anybody else on that ticket you voted for? — A. I remember just Wickersham. I don't know the others. Q. After you voted did you go back to Shorty Stoffer's cabin? — A. I took the piece of pnner back to him. Q. Did Shorty tell vou to come back? — A. No; he did not tell me to come back. Q. Did Shorty give you some cake and coffee after you came back? — A. No. Shorty never said anything. Q. The ballot you brought back was the one Mike Dolchok gave you. — A. It was. Cross-examination by IMr. Rtjstgard : Q. Shorty never said anything to you at any time did he? — A. No. Q. Y'ou went there because you wanted to learn to mark the ballot? — A. Mike Dolchok asked me to come over. Q. What did you go there for? — A. Mike asked me to come to Shorty's cabin; he never told me what for. Q. When vou ci\me over there he showed vou how to mark vour ballot? — A. Yes. Q. Before that date did you know how to mark your ballot? — A. I didu't know a thing about it. Q. You wanted to learn, didn't you? — A. I didn't know a thing about it. Mike asked me over to cabin and said he would show me how to mark it. Q. How old are you? — A. I am 38 years old. 292 WICKEESHAM VS. SULZER. Q. Have you a wife and children? — A. I did luave but tliey are all dead. Q. Where were yon born? — A. Seldovia. Q. Do you speak the Aleut language? — A. No. Q. Do you speak Russian? — ^A. Yes. Q. You are speaking Russian now when you are testifying? — A. Yes. Q. You are assistant to the priest of the Greek Catholic Church at this place? — A. I am. 0. You read the services in the church? — A. Yes. Q. How long have you been assistant priest here? — A. For many years. I was a small boy when I started helping in church work. Q. Are both your parents dead? — A. Yes. Q. How long have they been dead? — A. I was a little boy when I lost my father, but my mother has not been dead a very long time. Q. Were your father and mother full-blooded Kenais? — A. Yes. Q. Were they born here at Seldovia? — A. Yes. Q. Your parents were communicants of the Greek Russian Church? — A. Yes. Q. And your forefathers as far back as a century or more were regular com- municants of the Greek-Russian Church? — A. Yes. Q. How far from this house do you live? — A. Only a short ways from here up over on the hill. Q. Do you know where Mr. Anderson, who keeps the store, lives? — A. Yes. Q. Does he live close to where you live? — A. No ; he lives the other side of me. Q. Anderson lives further up the hill? — A. Yes, sir. Q. You live between Anderson's place and this place? — A. Yes, sir. Q. Anderson has a family, has he not? — A. Yes; he has a wife. Q. Both he and his wife are white people? — A. Yes. Q. It is close to the post office you live? — A. Yes; it is close to the post ofBce. Mrs. Christianson lives below Anderson's house. Natives live close to each other in that part of the town. There are white people living around them. Q. Do you raise any vegetables? — A. No. Q. Do you raise any cows? — A. No. Q. Do you raise any chickens? — A. No. Q. What do you do; what do you work at? — A. I officiate in church and then work now and then when I have a chance. I have no garden, for I am all alone. I have no family. Q. When you work what kind of work do you follow? — A. I fish and work in the cannery ; also work at logging. Q. All the natives at this place are regular communicants of that Greek- Russian Church are they not? — A. Yes; they all belong to the Greek-Russian Church. Q. There has been some testimony here by IMike Doyle that the Indians have a chief. Do the Indians have a chief? — A. They haven't a chief. Since Aneisam move oxit of town there has been no chief. Q. How long since he moved out of town? — A. About six years ago. Q. When was Aneisam elected chief? — A. I can't remember. Q. Wlien he was chief here at Seldovia did he have any authority to make any laws for the people? — A. He may. but they didn't obey him. Q. Was his business to help look after the church and the public welfare of the"^ community ?— A. The chief had nothing to do with the church business. O. The cliief didn't try to exercise any authority over the natives, did he? — A. No. Q. The natives at this place were trying to live up to the la\ys of the country, were they not? — A. Yes, sir; that is what they wanted to do. TESTIMONY OF GREGOEI KALXJNGI. INlRS. ANNIE CHRISTIANSON first duly sworn as interpreter, and the wit- ness was thereupon interrogated through said interpreter. Direct examination by Mr. Donohoe : Q. State your name. — A. Gregori Kalungi. Q. How old are you? — A. I am -56 years old. Q. Where do you live? — A. Seldovia. Q. Did you live in Seldovia on the 7th day of November, 1916, on the day of election? — A. Yes, sir. Q. Do you live in that portion of the village of Seldovia known as the " native village " ? — A. Yes, sir. WICKEESHAM VS. SULZEE. 293 Q. Are you an Alaska native? — A. Certainly; I am a Kenai. Q. Your tribe of people are called " Kenais " ?— ^A. Certainly. Q. Do you read or write the English language? — ^A. No. Q. Do you read or write the Russian language? — A. No. Q. Do you read or write any language? — A. If I can't read or write the Englisli or Russian language, then what other language is there left for me to read or write? Q. Do you speak the English language? — A. No; I understand a few words of it. Q. Did Mike Dolchok on election day last November tell you to come down to Shorty Stoffer's cabin?— A. Yes. Q. Did you go down there? — A. Yes. Q. Did you see Shorty StofCer there? — I did. He came in and poured out a cup of coffee. Q. Did he give you coffee and cake? — A. I'es. Q. Did he say anything about how you should vote? — A. No. Q. Did Mike Dolchok say anything to you about voting? — A. Yes. Q. Did he give you a paper with marks on it to show vou how to vote? — A. Yes. Q. Did he tell you to go to the voting place and mark the paper you would get there the same as he gave you ? Mr. RusTGAED. I make the same objectiorl to this witness as I did to the other witnesses heretofore. A. Yes. Q. Did Blike go with you up to the voting place? — A. No. Q. Did you vote on election day? — A. I did. ' Q. Did you mark the paper the judges of election gave you the same as the paper was marked that Mike gave you? — A. Yes; I marked it the same. Q. Did you vote for .James Wickersham for Delegate to Congress? Mr. RusTGAED. I object on the same grounds as heretofore, and ask the in- tei'preter to instruct the witness that he does not have to answer. A. I just marked the paper as it was given to me. Q. Do you knovr the name of anyone you voted for on that ticket? — A. No. Q. Did Mike say anything to you about voting for Wickersham? — A. No. Q. Did Mike tell you to vote for the third name from the top of the ticket? — A. No ; he didn't say anything. Q. Then you marked the ticket you voted just the same as the ticket that Mike gave you ? — A. Yes ; I put crosses on it like the other one. Cross-examination by Mr. Rtjstgaed : Q. Where were you born? — A. I don't know. Q. Are your parents still living? — A. Yes; for many years. Q. Did your father or mother ever tell you where you were born ? — A. No. Q. Do you know where your father or mother were born? — A. No. Q. Have you lived anywhere else except here at Seldovia? — A. I have been knocking around a good deal, going from one place to another until after I was married, when I settled down here at Seldovia about 25 years ago. Q. Have you a wife and children now? — A. Yes. Q. How many children have you? — A. Two children. Q. Where you now live there are white people or people of mixed blood living all around you ? — A. Yes ; I live close to the post office. Q. Do you speak the Russian language? — A. Y^es. Q. You are speaking in the Russian language now when you are testifying? — • A. Yes, sir. Q. You attend the services in the church here? — A. Yes. Q. And you are a regular communicant of the Greek-Russian Church? — A. Yes, sir. Q. And you were probably baptized in the Greek-Russian Church when an infant?— A. Yes. Q. And your parents were probably communicants of the Greek-Russian Church?— A. Yes. Q. And your forefathers were communicants of the Greek Russian Church as far bade as a century or more? — A. Yes. Q. Do you own your own home here? — ^A. Yes. Q. Do you raise vegetables? — A. No. Q. Have you any cows? — ^A. No. 294 WICKEBSHAM VS. SULZER. Q. Do you raise chickens? — ^A. No. Q. What do you work at?— A. I liave plenty of work. I hunt and don't get anything. I work at logging, fishing, and work at the cannery. TESTIMONY OF NICK SAKALOFF. Mrs. ANNIE CHRISTIANSON, first duly sworn as interpreter, and the witness was thereupon duly interrogated through said interpreter. Direct examination by Mr. Donohoe: Q. What is your name? — A. Nick Sakaloff. Q. What is your age? — A. I am 25 years old. Q. Where do you live? — A. With my uncle, Gregori Kalungi. Mr. RusTGAED. I make the same objection as I made at the beginning of the testimony of M. J. Doyle. Q. You live in the native portion of the village of Seldovia? — A. I don't know what part of the town it is I live in. Q. You lived in the town of Seldovia on the 7th day of last November, the day of election, did you not? — A. Yes. Q. Do you read or write English? — A. No. Q. Do you read or write Russian? — A. No. Q. Do you speak English? — A. No. Q. Did you not on the morning of election, the 7th day November, 1916, go to Shorty Stoffer's cabin? — A. Yes. Q. Who told you to go to Shorty Stoffer's cabin? — A. Mike Dolchok. Q. Did you have some coffee and cake at Shorty Stoffer's cabin? — A. Yes. Q. Shorty gave you the coffee and cake?— A. No ; Mike did. Q. Did you have any conversation with Shorty Stoffer?— A. No. Q. Was Shorty there?— A. Yes. Q. Did Mike tell you anything about voting? — A. Yes. Q. Did he tell you to vote for James Wickersham? — A. No. Q. Are you an Alaska native? — -A. I am. Q. What is the name of your tribe? — A. Kenais. My father was a Russian. Q. Did Mike give you a ticket? — A. Yes. Q. Did he show you the marks on the ticket of the names of the men for whom you were to vote? — A. Yes. Q. What did he tell you to do when you went up to the voting place? Did he tell you to make a cross on the ticket which the judges would give you the same as the one he gave you? — A. Yes. Q. Did you make crosses on the ticket you voted just the same as on ticket Mike gave you? — A. Yes. Q. Did you vote for James Wickersham for Delegate to Congress? — A. I don't know. Q. Do vou know the names of anyone on the ticket that you voted for? — A. No. Q. Do you know how many crosses you made on the ticket you voted? — A. No. Q. Do you remember that you made a cross on the ticket opposite the third name from the top? — A. I don't remember. Q. After you marked your ticket the same as the ticket Mike gave you was marked did you take the ballot in and put it in the ballot box? — A. I took the ticket up myself and gave it to Albert and he put it in the ballot box for me? Q. Who is Albert?— A. Albert Osness. Q. And you don't know the name of anyone on the ticket for whom you voted? — A. No. Q. After you voted did you go back to Shorty Stoffer's cabin and have some more coffee and cake? — A. No; I went back and took the paper back. Q. You gave the paper back to him? — A. I just left it on the table. Q. That was the poper that Mike gave you to show you how to vote? — A. Yes. Q. When you went back did Shorty give you any more coffee and cake? — A. No. Q. When you went back did Mike ask you if you voted the ticket the same as the names that were on the ticket he gave you? — A. He didn't say anything. Cross-examination by Mr. Rustgaed : Q. That paper which Mike gave you to mark your ballot was a yellow piece of paper, was it not? — A. Yes. WICKERSHAM VS. STJLZER. 295 Q. And it was the same size as the paper you got from the judges? — A. Yes. Q. Where were you born? — A. Seldovia. Q. Where you live in Seldovia are there any white people living around you? — A. Yes. Q. Are you married? — A. No. Q. Do you belong to the Greek-Russian Church? — A. Yes. Q. You are a regular attendant of that church? — A. Yes. Q. Do you speak the Russian language? — A. Yes. Q. What language are you speaking now when you are testifying? — A. Russian. Q. Can you read anything in Russian? — A. No. Q. Did you ever go to school? — A, No. Q. What do you work at? — A. Fishing, logging, and at the cannery. Q. You live in Seldovia at the present time? — A. Yes. Q. Did you ever tell Mike Doyle for whom you voted? — A. No. Q. Did he ever talk to you about whom you voted for? — A. I don't remember ever talking to him about that. At the conclusion of the taking of the foregoing testimony, and in order to allow the attorney for the contestant and contestee and the notary public to depart from the village of Seldovia on the steamer sailing shortly thereafter, it was stipulated and agreed by and between the attorneys for each of the parties that the testimony of the witness Anton Dolchak, Samuel Mercuroff. Gregory Foxy. Gregori Kalungi, John Talknak. Nick Sakaloff, and Saverian JakalofC when transcribed need not be read to said witnesses and signed by them, and the reading of the testimony after being transcribed to the respective witnesses aad the signing of the same by said witnesses was then and there expressly waived by each of the parties to the contest acting by and through their respective attorneys, and the following stipulation was thereupon entered into : ■ STIPULATION. It is hereby stipulated and agreed that the testimony of the witnesses Anton Dolchak, Samuel Mercuroff. Gregory Foxy. Gregori Kalungi, John Talknak, Nick Sakaloff. and Saverian .Jakaloff when transcribed shall not be read to said witnesses or signed by tliem, and the reading of said testimony to said witnesses after being transcribed and the signing of the same by said witnesses is hereby expressly waived, and it is agreed that the foregoing testimony of the said witnesses is a full, true, and correct transcript of the sworn testimony given by said witnesses, and that the same shall have the full force and effect as it would have if after being transcribed it had been read to the witnesses and each of said depositions had been signed bv the respective witnesses. Dated at Seldovia, Alaska, this 14th day of July, 1917. John Rustgard. Attorney for James Wickersham. Contestant. T. .1. DONOHOE, Attorney for Charles A. Sulzer, Contestee. Exhibit No. 1 of M. J. Doyle's Deposition. Feank J. Hayes, Notary Public. William Lowell, Mike Dolchok, Simeon Mercure. Steve Sorosnikoff, Anton Dolchak. Samuel Mercuroff, Foxy Gregory, Toko Coustantine. Gregorv Kalungi, John Talenak. Zakar Chonka, Nick Sakoloff, Saverian Jakaloff, Mrs. Ritchin, Lizzie Block, Irene Jacobson, Agnes Barnes. Mrs. George King, George King, Mrs. E. R. Bogard, Mrs. J. Cleghorn, Mrs. Sallie Bowen. Contestee's Exhibit No. 2 of M. J. Doyle's Deposition. Frank J. Hayes, Notary Public. Seldovia, Alaska. Deeemher 5, 1916. I, Mike Dolchok, was at Shorty Stoffer's cabin. I went from there over where there was voting: then I voted. I went back to Shorty's place and had coffee and cake. He told me to come back and have coffee and cake. Questions asked by Deputy United States Marshal F. J. Cameron of Mike : Q. Have you voted before this time? — A. Yes ; I voted two years ago. Q. Who did you vote for two years ago? — A. Wickersham. 296 WICKEESHAM VS. SULZER. Q. Who did you vote for this time? — A. Wiclversliam. Q. Are you a native? — A. Yes, sir. Q. Where were you born? — A. Seldovia, Alaska. Q. Was your father a native? — A. Yes, sir. Q. Is your mother a native? — A. Slie is. [seal.] Mike Dolchok. Witnesses : M. .T. Doyle, H. M. Blake. Dated this 5tli day of December, 1916. Subscribed and sworn to before me this 5tli day of December, 1916. [SEAL.] Annie Christiansen, Notary Public for Alaska. CONTESTEE'S EXHIBIT No. 3 OF M. J. DoYLE'S DEPOSITION. FkANK .1. HaYES, Notary Public. Seldovia, Alaska, December 5, 1916. I, Zaliar Chonkua, do say that I voted on the 7th day of November, 1916, at the polling place. I went from Shorty Stoffer's cabin to vote. He showed me Wickersham's name, the third one from the top. and told me to vote that one ; and told me to come back and get coffee and cake, and I did. Questions asked by Deputy United States Marshal F. J. Cameron : Q. Are you a native? — A. Yes. Q. Where were you born? — A. Seldovia, Alaska. Q. Can you read or write? — A. No. [seal.] Zakar Chonkua (X). ByF. J. C. Witnesses : M. J. Doyle, Mrs. Annie Christiansen. Dated this 5th day of December, 1916. Subscribed and sworn to before me. [seal.] Annie Christiansen. Contestee's Exhibit No. 4 of Deposition of M. J. Doyle. Frank J. Hayes, Notary Public. I, Constantine Loko, do say that I voted on the 7th day of November, 1916, at Fillmore's place, where they were voting. I went to Shorty Stoffer's cabin and had a cup of coffee. Shorty Stoffer gave me a marked ticket and told me to mark the one just like it. I marked my ticket in the booth just like it. Then I went home. Foxy told me to go to Shorty Stoffer's cabin with him. Questions asked by M. J. Doyle : Q. Have you ever voted before for Delegate to Congress? — A. Yes. Q. Did you vote for Wickersham at this election? — A. I don't know. [seal.] - Constantine Loko. (X) By F. J. C. Witness : M. J. Doyle, J. A. Hart. Subscribed and sworn to before me this 6th day of December, 1916. [SEAL.] Annie Christiansen, Notary Public for Alaska. Contestee's Exhibit No. 5 of M. J. Doyle's Deposition. Frank J. Hayes, Notary Public. Seldovia, Alaska, December 5, 1916. I, Steve E. Sorokovikoff. do say that I voted on the 7th day of November at the said election for Delegate to Congress. I went from Shorty Stoffer's cabin to the place where I voted. I then went back to his cabin and had coffee and cake. WICKEESHAM VS. SULZEE. 297 Questions asked by Deputy United States Marslial F. J. Cameeon of Steve E. Sorokoviliofe : Q. What is your nationality? — A. My father was a Russian and my mother was a native. Q. AVhere was your father, born? — A. I do not know where he was born. Q. Who told you to vote? — A. Nobody. Q. Who did you vote for? — A. Wicliersham. [SEAL.] Steve E. Soeokovikoff. Witness : • M. J. Doyle, H. M. Blake. Dated this 5th day of December, 1916. Subscribed and sworn to before me this 5th day of December, 1916. [seal.] Annie Cheistiansen, Notary Public for Alaska. Contestee's Exhibit No. 6 of M. J. Doyle's Deposition. . Feank J. Hayes, NoTAEY Public. Seldovia, Alaska, December 5, 1916. I, Irene Jacobson. do say that I voted on the 7th day of November at the said election for Delegate to Congress. I took Mrs. Block with me. I told her I was going to vote. She said that she would go with me. Nobdy told me to vote. Milo Hulbert marked my ticket for me. Questions asked by Deputy United States Marshal F. J. Cameeon : Q. Are you a native? — A. Yes. Q. Are you married to Mr. Nelse Jacobson? — A. Yes. Q. Where were you born? — A. Kodiak. [seal.] Mrs. Ieene Jacobson. (X) By F. J. C. Witness : M. J. Doyle, Mrs. Annie Cheistiansen. Subscribed and sworn to before me this 5th day of December, 1916. [seal.] Annie Cheistiansen, Notary Public for Alaska. ceetificate of notaey. United States of America. Territory of Alaska, third division, ss: I, Frank J. Hayes, a notary public in and for the Territory of Alaska, duly commissioned and sworn, residing at Valdez, Alaska, do hereby certify that pursuant to the notice served on Contestant James Wickersham at Auburn. King County, State of Washington, on the 27th day of June, 1917, which said notice and proof of service thereof is attached to the deposition of Arthur Lang, and pursuant to a stipulation entered into between James Wickersham, con- testant, acting by and through his duly accredited attorney, John Rustgard, and Charles A. Sulzer, contestee, acting by and through his duly accredited attorney, T. J. Donohoe, made on the 13th day of July. 1917, which stipula- tion is attached to the foregoing depositions, personally appeared before me at the hour of 11 o'clock in the forenoon upon the 13th day of July, 1917, at the office of the deputy United States marshal at the town of Seldovia, third judicial division. Territory of Alaska, M. J. Doyle. Anton Dolchok, Samuel Mercuroff. Gregory Foxy, Gregori Kalungi. John Talenak. Nick Sakaloff, and Saverian Jakaloff. witnesses on behalf of Charles A. Sulzer, contestee; that each of said witnesses was by me first duly sworn to tell the truth, the whole truth, and nothing else but the truth, and then and there gave his deposition as hereinbefoi-e set forth upon the oral interrogatories propounded to him by T. J. Donohoe, attorney for Charles A. Sulzer, contestee, and upon the oral cross-interrogatories propounded to him by John Rustgard, attornev for James Wickersham, contestant, and in the taking of the deposition of M. J. Doyle 298 WICKEESHAM VS. SULZEE. the several depositions attached to it thereafter were thereupon duly intro- duced in evidence ; that the said deposition of M. J. Doyle after being taken by me in shorthand was typev/ritten by me, and after being typewritten it was read to said witness and corrected by him and was submitted to and read by each of the attorneys for the parties to the above-entitled contest and approved by them as correct and was then and there subscribed and attested to by the said M. J. Doyle as being true in all i-espects and being the testimony given by him; that at the close of the depositions of M. J. Doyle, Anton Dolchok, Samuel Mercuroff, Gregory Foxy. Gregori Kalungi, John Talenak, Nick Saka- loff, and Saverian JakalofC it was stipulated and agreed by and between each of the parties to the above-entitled contest that the depositions of said wit- nesses when transcribed need not be read to, corrected, and signed or attested by said witnesses : that said depositions after being taken by me in shorthand were typewritten by me and after being so typewritten were submitted to and read by the attorneys of each of the parties to the above-entitled contest and was approved by them, and thereupon said parties, acting by and through their respective attorneys, stipulated and agreed that the foregoing transcript of the depositions of each of said witnesses is a full, true, and correct transcript of the sworn testimony given by said witnesses, and that the same should have the same force and effect as it would have if after being transcribed it had been read to the witnesses, signed and attested by each of said wrLnesses. Said stipulation is hereto attached to the foregoing depositions. In witness whereof I have hereunto set ray hand and affixed my notarial seal this 4th day of July, 1917. [seal.] Frank J. Hayes, Notary Public for Alaska. My commission expires May 19, 1921. NOTICE or TAKING DEPOSITIONS. To the Hon. James Wickersham. Contestant in the above-en titled proceeding: You are hereby notified that the depositions of Strong, governor of the Territoryof Alaska. Charles Davidson, W. W. Shorthill. J. F. Pugh, and J. W. Bell, and each of them, each and all of whom are residents of the city of Juneau, in the Territory of Alaska, will be taken before Grover C. Winn, a notary public in and for the Territory of Alaska, at his office in said city of Juneau, at the hour of 10 o'clock a. m., on the 24th day of July, 1917, to be read in evidence in the above-entitled proceeding in behalf of said Charles A. Sulzer, and that the taking of said depositions will be continued from day to day there- after and over Sundays and other holidays, if any, until the taking of the same shall have been completed. Dated this, the 14th, day of July, A. D. 1917. Charles A. Sulzer, Contestee, By J. A. Hellenthal and .John R. Winn, Attorneys for Charles A. Sulzer, Contestee. affidavit or service. State of Washington. County of Kind, ss: C. E. BODLE, being first duly sworn, on oath deposes and says : I am now, and at all times hereinafter mentioned was, a citizen of the United States and a citizen and resident of the State of Washington, over the age of 21 years, competent to be a witness in the above-entitled proceeding, and not a party thereto. On the 14th day of July, 1917, I received a copy of the notice of tak- ing depositions in the above-entitled matter, and thereafter, on the 14th day of July, 1917, at Seattle. King County. Wash., I personally served said notice of taking depositions upon .James Wickersham by delivering to and leaving with said James Wickersham, personally, a full, true, and correct copy of said notice of taking depositions. C. E. Bodle. Subscribed and sworn to before me this 16th day of July, 1917. [seal.] Dallas V. Halverstadt, Notary Public in and for the State of Washington, residing at Seattle. WICKEKSHAM VS. SULZEE. 299 UNITED STATES DISTRICT COtTET FOR THE DISTRICT OF ALASKA, DIVISION NO. 1. The President of the United States of America to Gov. J. F. A. Strong, Charles Davidson, J. F. Pugh, W. W. Shorthill, and J. W. Bell greeting: You are hereby commanded to appear before me, the undersigned, G. C. Winn, a notary public in and for the Territory of Alaska, at my ofiice in the Valentine Building, at Juneau, Alaska, on Tuesday, the 24th day of July, A. D. 1917, at the hour of 10 o'clock a. m. of said day, to testify on behalf of the con- testee, Charles A. Sulzer. in a proceeding instituted before the House of Representatives of the Congress of the United States, in which James Wicker- sham is contestant and Charles A. Sulzer is contestee. You are hereby commanded to bring with you — (a) The following list of returns of the election held on the 7th day of November, A. D. 1916, in which election James Wickersham, contestant, Charles A. Sulzer. contestee, and one Lena Morrow Lewis were candidates for the office of Delegate to Congress : 1. Complete returns from the precincts of Choggiung, Deering, Nizina, Nush- agak, Utica. Bonnifield, and Vault, which returns are to include the original ballots used in each of the above-named precincts. 2. The election returns of the voting precinct of Sourdough, including the registers of votes on which the names of the persons who voted in said pre- cint appear, and the tally sheet or sheets and certificate or certificates of re- sults of said precinct. 3. Any and all returns of said election received from the second judicial divi- sion of the Territory of Alaska. 4. Any and all election returns, including any and all certificates of results from the preciActs of Juneau No. 1, Juneau No. 2, Loring, and Tokitna. 5. The election returns, including any and all oaths taken by oliicers of said election from the precincts of Cliff, Camlle. Cape Nome, Kobuy, Koyuk,, Nome No. 1, Nome No. 2, Nome No. 3, Chinik, Port Clarence, Shelton, Solomon, Taylor Creek, Anchorage No. 2, Charcoal Point, Eagle (Juneau recording district), Hope, Cripple, McGrath, Bonanza (WMle River recording district), Kasaan, Granite, and Fidalg. 6. The election returns, including the oath of office taken by the judges from the following precincts : Cache Creek, Landlock, McDougall, Nizina, Teikel (Chitina recording district), Teikhell (Valdez recording district). Willow Creek, Afognak, Spruce Creek, Salchaket, Upper Cleary, Woodchopper (Hot Springs recording district). Ester, Fish Creek. Lower Gold Stream, Mouth of Crooked, Bettles, Deadwood, Keniai, Mendenhall, Haines, and Seldovia. 7. All election returns, including the certificate of results for the precincts of Fort Gibbons and Tanana, and Seldovia and Afognak. (b) The full returns of the election held the Tuesday after the first Monday in November in the year 1914, from the precincts of Fort Gibbons and Tanana and Seldovia and Afognak. (c) The opinion of George B. Grigsby, then Territorial councel, now attorney general, rendered February 19. 1917, at the request of the canvassing board through their chairman. Gov. J. F. A. Strong, under date of February 16, 1917. Hereof fail not. In witness whereof I haA^e hereunto set my signature and official seal of Juneou, Alaska, this 18th day of July, A. D. 1917. [seal.] G. C. Winn, Notary Puhlic for Alaska. My commission expires July 22, 1917. United States of America, Territory of Alaska, Division No. 1, ss: I hereby certify that I received the within subpoena on the 18th day of July, 1917, at Juneau, Alaska, and that I served the same on W. W. Shorthill on the same day at Juneau, Alaska, by handing to and leaving with him a certified copy of the original writ herein, said service made personally, aud I further certify that on the 19th day of July, 1917. at Juneau, Alaska. I made service of 'the within writ on Charles Davidson by handing to and leaving with him a certified copy of the original writ herein, said service made personally, and I further certify that on the 20th day of July, 1917, at Juneau, Alaska, I made service of the within writ on Gov. J. F. A. Strong by leaving a certified copy of the within writ at his residence, the governor's mansion, in the possession of 300 WICKEESHAM VS. SULZEE. Hilma Rusenin, she being an inmate of said residence and' of legal age to accept service. Marshal's fees, $2.25 ; paid by Grover C. Winn. Dated at Juneau, Alaska. July 21, 1917. J. M. Tanner, Vnited States Marshal. By J. L. Manning. ' Office Deputy. DEPOSITIONS. This matter came on regularly before G. C. Winn, pursuant to the hereunto attached notice served upon James Wickersham, at 10 o'clock a. m. on the 24th day of July, 1917, both parties being represented, Charles A. Sulzer being repre- sented by his counsel, Messrs. Hellenthal & Hellenthal and John R. Winn, and James Wickersham being represented by his counsel, John H. Cobb. Now, it is agreed by and between the parties that L. A. Green, the official court reporter for the first division of the Territory of Alaska, may and shall act as reporter to take the testimony, under the direction of the said G. C. Winn as notary public, and shall extend the notes so taken under his supervision and direction. Hellenthal & Hellenthal, By J. A. Hellenthal, Jno. R. Winn, Attorneys for Contestee. J. H. Cobb, Attorney for Contestant. Thereupon appeared W. W. SHORTHILL, a witness called by the contestee, Charles A. Sulzer, who, being first duly sworn, on oath testified in answer to questions as follows : Direct examination by Mr. J. A. Hellenthal : Q. You may state your name. — A. W. W. Shorthill. Q. Where do you reside, Mr. Shorthill? — A. Juneau, Alaska. Q. What official position, if any, do you occupy? — A. Secretary to the gov- ernor. Q. Secretary to the governor of Alaska? — A. Yes, sir. Q. The hon. J. F. A. Strong is the governor? — A. Yes. sir. Q. Gov. Strong is at present absent from the Territory? — A. Well, he is on his way to Juneau, but whether he is in the Territory as yet I do not know. Q. He is not in Juneau at any rate? — A. He is not in Juneau. Q. And hasn't been in Juneau for some little time? — A. Since the 29th of May. Q. As secretary to the governor you are in charge of and have control of the records and files of the governor's office? — A. Y"es, sir. Q. Have you among those records and files the returns from the various election precincts in the Territory of Alaska sent in by the judges of election from those various precincts in connection with the election held in November of 1916?— A. Yes, sir. Q. That is the election in which Charles A. Sulzer and James Wickersham were opposing candidates? — A. Yes, sir. Q. Among the returns on file in the governor's' office and in your charge have you the returns from the precincts of Choggiung, Deering, Nazina~, Nushagak, Utica, Bounifield. and Vault? — A. l^es. sir. Q. Will you kindly hand me the returns, first, from the precinct of Choggi- ung? — A. Yes, sir. [Hands papers to counsel.] Q. I hand you here, M^. Shorthill, certain papers fastened together and marked " Contestee'g Exhibit A," and ask you to look at that and state what that is and v,iint that exhibit represents? — A. It is the election register and tally book of the Choggiung voting precinct, Bristol Bay recording district, third judicial division of Alaska, and contains the oath of office of the judges of election, the register of the voters, the judges' certificate, the register, the tally book or sheets, and the certificate of the judges to the election returns showing the total votes received by each candidate, and also has attached to it the ballots which were returned by the election board for that precinct. Q. The ballots attached are the original ballots returned with the election returns from that precinct? — A. l^es, sir; those are the original ballots. WICKEKSHAM VS. SULZEE. 301 Q. How many ballots are attached to this exhibit? — A. Twenty-four. Q. Is that all the ballots returned with the election returns? — A. So far as I know, it is ; yes, sir. Q. These returns have been in your cvistody ever since received at the gover- nor's office? — A. Yes. Q. And have been as carefully guarded as could be? — A. Yes. Q. And no other or further ballots are with the returns from Choggiung? — A. No ; there are no others with the papers. Q. To the best of your knowledge, the 24 ballots attached to Exhibit A are all the ballots returned from that precinct? — A. To the best of my knowledge, yes: I do not know whether the record of the canvassing board contjected to his vote and the election officers sustained the objection? Is that what happened? — A. No, sir; Mr. Hal Gould told Mr. Demmert he could not vote, and in behalf of Mr. Dem- mert and the natives in general I asked for the reason and the argument fol- lowed. Butler and Smith took active part. WICKEESHAM VS. SULZEK. 329 Q. Who were the election officers? — A. Hal Gould. John Lindsay, J. N. Coker. Q. Who appointed these election officers? — A. I do not know. Q. Do you know who is commissioner and ex ofllcio justice of the peace in the Craig- precinct? — A. I do. Q. What is his name? — A. Charles Fox. Q. Do you know who appointed him? — A. Appointed by the governor, I think. No ; he is appointed by the district judge, not the governor. Q. Who is the district judge iu this division who appointed him? Mr. Sellers. I object because it is immaterial, and I move that all questions along that line be stricken because it does not make any difference who the judges were or who appointed them, and for the further reason that it has no hearing on the legality of those voting. A. Judge Jennings is the district judge. I do not know whether Fox re- ceived his appointment from him or previous to that, as Fox has been com- missioner since I have had anything to do with the commissioner in this Terri- tory. Q. Do you not know that Judge Jennings and Commissioner Fox and these election officers are all Democrats and friends and supporters of Mr. Sulzer? — A. I do not. I know that Mr. Fox is a friend of Mr. Sulzer. Mr. Jennings I know nothing of whatever. Q. What do you know about the election officers? They are Democrats, are they not? — A. I think Mr. Coker is. The other two I do not know. I have never discussed politics with either of them. Q. Mr. Fox is a Democrat, is he not? — ^A. I think he is. Q. You are a Democrat, are you not? — A. No, sir; I am independent; I do not affiliate with any party. Q. Did you vote the Democratic ticket last fall? (Objection by Mr. Sellers that it is incompetent.) A. I don't believe that it is necessai-y for me to go into my political views. Q. You are not ashamed of them, are you? Mr. Sellers. I do not think that is fair. A. I am not ashamed of them, but I do not think that it is necessary. Q. You were a strong supporter of Mr. Sulzer, were you not? — A. Yes, sir. Q. Did you furnish the list of witnesses in this case? — A. I did: yes, sir. Mr. Sellers. I object to the encumbering the recoi'd by such questions. Q. And you have been very active in gathering the witnesses and presenting the witnesses in Mr. Sulzer's behalf, have you not? — A. I have been very active in gathering these witnesses because I believe in the enfranchisement of the natives. I began this fight the next day after election. Q. But is it not true that you appealed to Mr. Sulzer's friends for support and are trying to get credit only for those natives whom you contend would have voted for him ? — A. No, sir ; that is not true. Q. Do you know of any of the witnesses named by you who would have voted for me? — A. I do not. Q. What State did you come from. Mr. Hibbs? — A. My native State was Iowa ; I spent most of my life in Kansas — more than 20 years in Kansas. Q. Where were you appointed from? — A. Bellevue, Wash. Q. Do you know of any money having been used in gathering the information relating to this hearing in any way, shape, or manner? — A. I know nothing about it whatever. Q. No part of your expense has been paid? — A. No, sir. Q. Does the Bureau of Education permit the Government school-teachers to take part in partisan politics as you have? Mr. Sellers. I object to this question so as not to encumber the record, and I want now to object to any question along any lines other than to the legality or illegality of the voters. I want my objections to run to all these questins. A. I have taken no part in party politics and ask permission of the court to qualify my statement, if I may. Since I have been in Alaska the past five years, the natives who are able to read and write, and that are known to have laid aside all tribal relations, have been allowed the right of fran- chise. When the law passed two years ago. allowing a certificate of citizen- ship to natives of Alaska, I asked Supt. Beattie what effect it would have on the rights of the natives, and he told me that it would have none whatever. That it only allowed natives a proof of citizenship that they could take advantage of if they wished. Prior to the election last fall I asked Mr. 330 WICKERSHAM VS. SULZEE. Sulzer, when he was through, and as he was instrumental with Mr. Beattie in getting this bill through, he told me the same thing. I afterwards took up the matter with Superintendent Hawkesworth, and he told me that in a conversation with Mr. Wickersham, Mr. Wickersham had told him that the natives had a right to vote. I came to Craig with no thought of native votes being challenged, and when they were I asked permission of the judges for permission to swear in just one vote to make a test case of it. This was refused. I felt then, as I do yet, that this is an injustice to the native, and while I have already stated that I am a friend and a supporter of Sulzer, I have not in any way made this a personal or political fight. But from the position that I am in and the duties involving on me, I hold it a sacred duty to see this fought to a finish. If the natives have not the right to vote, I do not want to be wasting my eiforts in trying to get them to vote. If it is their privilege to vote, then I want to see it granted, regardless of who they vote for. Q. Well, if that is your view, why don't you proceed in the way pointed out by the Legislature of Alaska in the other act provided for their benefit, being the act entitled, "An act to define and establish the political status of certain native Indians within the Territory of Alaska," approved by the governor of Alaska April 27, 1915, whereby you could accomplish what you say you want without mixing up in partisan politics as you now are? — A. Because I do not believe from our Federal laws and what other information I am able to obtain that this is necessary, and it only incurs a great amount of expense on each native taking advantage of it ; and, therefore, if it is not a duty in order to become a citizen, then I leave the question entirely with the native. Q. Do I understand you to say that the ofliicials of the Bureau of Education in Alaska do not intend to follow the act of the legislature in this matter, but approve your course in intruding these questions into political fights, without regard to the law as passed by the legislature? — A. The Bureau of Education has nothing to do with that part of it, and the only way to get these matters pi'operly settled is by going to the polls. Q. Blit you know, do you not, that if the native would comply with the act of the legislature mentioned, he could not be prevented from voting in Alaska and no objection would be made to his vote? — A. I know that. I also know that no law of our Territorial Legislature can supersede a Federal law ; there- fore it is a matter for the native himself to decide whether he wants to apply for a certificate of citizenship or not. Q. Then you think the native may disregard the act of the legislature and vote whenever he or the Government school-teacher thinks he ought to do so. Is that your idea? — A. No, sir; not in the least. Q. Well, you think that you may disregard the act of the legislature, do you not? — A. I do not consider this a disregard of the act' of the legislature. The Federal law establishes the political status of the native because of the derision in which the native is held by many, this law allowing him a certificate of citizenship is, as it reads, simply a proof of citizenship. When he is where he is known personally and can prove his citizenship, then it is not necessary. It is simply a privilege that he may accept if he wants. Q. Do you advise the natives that way? — A. I do. Q. You advise them they need not comply with that act of the legislature?— A. Yes, sir ; unless they wish. I show them the advantages of it and leave it entirely to their judgment. Q. Why do you not advise them to obey the laws that are passed for their benefit, such as this one was? — A. I believe that I have answered that question in three previous answers. Mr. Sellers. I object to this as incompetent and as not the proper cross- examination. Q. Mr. Hibbs, you will admit that if the Indian took advantage of this act of the legislature and secured the order of the judge of the district court of Alaska, it would leave no doubt of his status as a citizen of the United States, do you ? — A. Certainly I know that ; but it is vmnecessary, as I before said. Q. Then why do" you think the Legislature of Alaska passed and Gov. Strong approved that act? — A. For the same reason that I gave awhile ago for the rea- son that those who wish to take advantage of it when they are going among strangers. Q. Suppose you should be mistaken about this, you would do the Indian a great injury. — ^A. That is the reason that I am in this matter, so that.it will be decided by our courts as I want to know. WICKEESHAM VS. SULZEE. 331 Q. While this witness is on the stand, and as a part of his cross-examination, I offer a printed official copy of the act of legislature entitled "An act to define and establish the poltical status of certain native Indians within the Territory of Alaska." approved April 27, 1915, and ask to have it filed, marked, and attached to the deposition. Mr. Sellees. I object to the introduction of it for the reason that it is incompetent. Q. Mr. Hibbs, do you not realize that if you were to advise the Indians to comply with that act of the legislature it would enable each of them to have his status settled as a citizen judicially and finally and save all question thereafter as to the citizenship of his parents or whether he was born in British Columbia and all such questions? — A. I could not conscientiously advise them because our distance from the judge and the time and cost in getting to the judge is so great and as I do not believe and have been advised by good authoritj' that this was not necessai'y. I believe that it is a matter to leave entirely with the native as to whether he wants to make such application or not. Q. Then why do you not do it? — A. Just as I have just answered. I think it is an injuustice to the native. C. E. Hibbs. Subscribed and sworn to before me this 25th day of July, 1917. [seal.] Will H. Winston, ' Notary PuMic for Alaska. My commission expires June 12, 1921. Mrs. C. E. HIBBS : Q. What is your name? — A. Winifred Hibbs. Q. Are you the Mrs. Hibbs that is mentioned in this notice? — A. I am. Q. Where do you live? — A. Klawock, Alaska. Q. How long have you lived there? — A. Two years the. 21st day of August. Q. Have you any official position? — A. Yes, sir. Q. If so, what is it? — A. Assistant United States Government teacher. Q. Do you know the Indians and half-breeds whose names are in this notice? — A. I am personally acquainted with every one of them. Q. Do you know whether they appeared here last November at the polls to vote? — A. I know that they did. Q. Did they vote?— A. They did not vote. Q. Why not? — A. Because the judge refused to let them. Q. What reason was given for refusing to let them vote? — A. Because they were Indians. Q. How long have you known these people personally? — A. About two years. Q. Have you been in their homes? — A. I have. Q. Do you find that they are living a civilized life? — A. Yes. Q. If so, explain their condition? — A. They are self -governed people, they take. active part in religious work, they built homes, furnished them as white people do, dress as white people, take no part whatever in tribal customs, have learned to read and speak the English language. Q. Do you know what kind of different businesses the Indians and half- breeds are engaged in? — A. Yes. They are merchants, carpenters, seine makers, and fishermen. Q. Would you say that they had severed their tribal relations? — A. I most certainly would. Q. What kind of a government have they are Klawock? — A. We speak of it as a village government— the council to make laws and executive officers to enforce them. Q. Who runs that government?— A. The natives themselves. Q. Have they a cooperative store there. — A. They have. Q. Who operates it and how is it run? — A. The iaatives own the entire stock of the store. The shareholders elect their directors. A native is the clerk and manager of the store. The United States Government teacher does the book- keeping and orders the goods. His books are audited once a year by a repre- sentative from the United States Bureau of Education. Q. Have they any societies there? If so, what are they? — A. Yes ; they have a fraternal order called the Brotherhood for the men of the village and a corre- sponding order for the ladies called the Sisterhood ; also an educational and literary society. 332 WICKERSHAM VS. SULZER. Q. Is there any of these natives that were refused the privilege of voting members of these societies? — A. Manj', if not all of them, were connected with these societies. Q. Do you know whether or not any of these people have voted before? — A. I do not. Q. Where is the voting precinct of Klawock? — ^A. Craig, Alaska. Cross-examination by Mr. Wickeksham : Q. Mrs. Hibbs, you are the wife of Mr. C. E. Hibbs, the witness who preceded you? — A. I am. Q. You speak of three societies at Klawock; those same societies are estab- lished at Hydaburg, are they not?— A. No, sir. Q. Nowhere else except at Klawock? — A. They are separate and distinct from any other societies. Q. Are there similar societies at any other places? — A. I have heard of a literary society at Hydaburg. Q. But no Brotherhood Society? — A. I know nothing about it. Q. Is it not true, Mrs. Hibbs, that these societies, the Brotherhood, the Sister- hood, and literary, are established at many other Indian reservations? — A. My work has been entirely at Klawock and with the Klawock Indians, other than what I have heard said. Q. When were these societies established at Klawock? — A. The literary soci- ety was established last winter. The Brotherhood was established a year ago this spring, to the best of my knowledge. The Sisterhood, I am not sure when. Q. Well, about? — A. It was established about the same time the Brotherhood was. Q. What school official, church official, assisted in establishing these soci- eties? — A. Mr. Bromley and Mr. Hibbs were instrumental in establishing the liter- ary society, and the natives themselves organized the Brotherhood and Sis- terhood. Q. Where did they get the plan or idea? — A. I think that the natives there at one time belonged to the Alaska Natives' Brotherhood. And they got their idea further from the way the Moose here at Craig took care of the sick and dead. Q. Most of these people are fishermen, are they not, Mrs. Hibbs?— A. Yes, sir. Q. They always were fishermen? — A. I have only known them two years. Q. Do you think they have learned to fish since the white man came here? — A. No. Q. You spoke of them living in houses; do they have any of the Klawock houses there yet? Any of the old houses yet? — A. I have only been there two years and they don't look very old to me. Q. Don't you know the difference between the old Indian type of house and the more recent or American type?— A. Yes; the houses out at the fish camp differ greatly from those that we have at the village. The houses that these people live in have modern chimneys, modern doors and windows. Mrs. Winifred Hibbs. Subscribed and sworn to before me this 25th day of July, 1917. [SEAL.] Will H. Winston, Notary Public for Alaska. My commission expires June 12, 1921. Rev. E. E. BROMLEY: Q. Where do you live, Mr. Bromley? — A. At Klawock, Alaska. Q. How long have you lived there?— A. One year and one month. Q. What is your business? — A. I am a minister. Q. What church?— A. I am under commission of the missionary board of the Presbyterian Church of America. Q. Are you acquainted with these Indians and half-breeds named in the notice in the contest between James Wickersham and Charles A. Sulzer? — A. I am. Q. How long have you known them? — A. Since coming to Klawock a little over a year ago. Q. Please state the nature of your acquaintance with them?— A. I married their young people and buried their dead. I have visited the sick. As a minister I have done personal work in every home. I see them as they live in their own homes when they are apart from other people. I meet them in public gatherings and in this way I am acquainted with every phase of their life. WICKEESHAM VS. SULZEE. 333 Q. Do you know whether they are in business in Klawock? If so state what you know about it and their manner of living. — A. Their business is such that it would lead anyone to believe that they are living a civilized life. The oldest store in Klawock is conducted by R. J. Peratovich, who is sole owner and pro- prietor, and the Klawock Commercial Co. employs George Demmert as the manager and clerk in their store. There are three boat shops in Klawock owned and operated by these men. A number of them have been employed as expert carpenters doing expert carpenter work. I see them engaged as gas- boat engineers on the large gas boats that are carrying fish to the canneries. One of them, Jack Peratovich. is recognized as an expert interpreter. He is at the present time my interpreter in all my work. Of course, during the fishing season many of them are out seining and doing the regular fish busi- ness. After the fishing season closes they will find work in other ways or lines. They go trapping, halibut fishing, and things of that kind. I have an excellent opportunity of seeing their manner of living. I go in and out among them and I will say that they are trying to live in accordance with the laws of the United States and the Territory of Alaska. They recognize the value of school training for their children. Many of them have sent their children to the States to Government schools, Chemawa and Cushman. Q. Hfve these people severed their tribal relations and are they living as oivilizea people? In other words, have they accepted civilized way of living? A. When I say that they are trying to make their lives conform to the laws of the Territory of Alaska and the United States of America I believe it shows that they are trying to live a civilized life. Many of the old customs and tribal relations were not in accordance with the laws of the Territory. As far as I can see these have been dropped entirely. Q. Can they read and write the English language and speak it? And espe- cially these names that have been mentioned as witnesses in this case? A. I have talked many times with all of the men that are mentioned in this case and know that they have an intelligent knowledge of the English language. I know also that they are able to read and write. Q. Did you come over here with those men on election day and do you know whether or not they were allowed to vote? A. I was not with the men that came to Craig to vote. Cross-examination by Mr. Wickersham : Q. Mr. Bromley, how many Indians reside at Klawock? A. In round num- bers about 300. Q. And of these, you think the witnesses mentioned in the notice here are civilized and capable of casting the ballot; do you? A. Yes, sir. Q. How many more do you think are equally civilized? A. I would say that the whole village is living what we would call a civilized life, but I do think that nearly all who could qualify as voters came over to vote ; I know of several not mentioned in this list who could qualify as well as those who are mentioned. Q. Do you think they are now entitled to purchase and drink whisky? A. I do not think that my answer to that question would add anything to this case. Q. Well, if they are citizens, they are as well entitled to drink liquor as nny other citizen, are they not? A. In my talks with the people of Klawock I try to tell them to live a good moral and temperate life the same as I would if I were talking to white people. Q. Yes, but you Avere called here as an expert witness to qualify these people for citizenship in opposition to the law passed by the Legislature of Alaska, and I now ask you again if you think they are equally entitled to purchase and drink whisky? A. I do not think that the right to purchase and drink whisky gives a man the right to vote or prove his citizenship. Q. No, but a citizen is permitted under the law to purchase and drink >vhisky ; do you know that? A. Y^'es sir.I know that. Q. Well, do you think these people have that right? — A. I can answer as I did before, I do not think that my answer would add anything to the testi- mony in this case. Q. Why do you not answer that question fairly as a Christian gentleman, is it because you realize that you are assisting to start these Indians on the wrong road? — A. When I say that I believe that these people are living civi- lized lives and are entitled to vote I mean that they have the moral stamina 334 WICKEESHAM VS. STJLZER. and backbone to take their place among the white people and not be ruined by the privileges that they will inherit with citizenship. Q. How many of these 300 people speak, read, and write the English lan- guage? — A. All of the younger generation, but a few of the older people have acquired enough of the English language so that they can read considerable. Q. Then why do you have to have an interpreter when you work among them? — A. Because a large number of the older people attend my services and for their sake we must have the interpreter. I will say also that while some of them understand the English language so that they can carry on a business conversation and ordinai-y talk in regard to their work, when it comes to the explaining of the Truth that I, as a minister, am ti'ying to bring to them their knowledge of English is not sufficient, this of course just applies to a few, as an explanation why I use an interpreter. Q. Have you considered the Territorial act for fixing the citizenship of these people? Mr. Sellers. I object to that because it is not competent and not proper cross-examination. A. Why, yes I have acquainted myself with that act. Q. Do you also advise the Indians that it is not necessary to comply with it? Mr. Sellers. I object to that for the same reason. A. I have not taken up that matter with the people at all. Q. "Well, why do you not, instead of intruding into these political scraps? Mr. Sellers. Same objection as before. A. I have had no occasion so far. Q. How did you have occasion to be here? — A. Because I was called as a witness. Q. Did you assist in making up the list of witnesses in this case? — ^A. I did not. Q. Were you consulted about the matter prior to coming on the witness stand ? — A. No, sir ; I was not. Q. Nobody spoke to you about the matter at all? — A. Only that I was notified that my name was on as a witness. Q. How did they know what you would testify to? — A. They had no way of knowing. Q. Have you not talked about the status of these people, their rights as citizens, to Mr. Hebbs before coming here to-day? Mr. Seelers. I object to that as being immaterial. A. Why, in a general conversation we have. I believe, talked over these matters. Q. To what extent? — A. Not to any great extent. Q. Enough to give him the views generally that you have presented here? A. My views on some things tliat I have said, no doubt. Q. Well, generally? — A. Perhaps. Q. Then why did you deny it? — A. I was not aware that I did deny it. Q. The Klawocks live on an Indian Reservation do they not? — A. They do not. Q. Are you as sure about that as you are about their capacity for citizen- ship? Mr. Sellers. I object to that as being improper. A. Why, I am no lawyer biit that is my understanding of tlie condition of affairs. Q. You know the island where they live is withdrawn by an Executive order for Indian use do you not?^ — A. I Ivuow that the island has been set aside as a reserve, but in no sense as a reservation. The people are free to come and go as they desire. No one interferes. They are not Government wards. They take care of themselves. Q. Are white people allowed to settle on the island? — A. Why, I think that the natives themselves shall decide or say who shall settle there. Q. Now you think white people may settle there notwithstanding the with- drawal for public use by President Wilson? Mr. Sellers. I object to that as incompetent, no matter what his opinion is. A. My understanding is as I said that the natives are to decide that. Q. Where do you get that law? — A. I can not answer that question. Rev. E. E. Bromley. Subscribed and sworn to before me this 25th day of July, 1917. [SEAL.] Will H. Winston, Notary Pahlic for Alaska. My commission expires June 12, 1921. WICKERSHAM VS. SULZEE. 335 R. J. PERATOVIOH: Q. Where do you live? — A. Klawock, Alaska. Q. How long have you lived there? — A. I am born in there. Q. What is your business? — A. My business Is store and moving pictures. Q. What is your age? — A. I will be 30 years July 27. Q. Who is your father-— A. John Peratovich. Q. Is he a native? — A. No. Q. What is he? — A. He is come from Austria. Q. How long- have you been in that business, moving picture and store busi- ness that you referred to? — A. I nm in the stoi-e business since 1909 and the moving pictures 1913. Q. How much have you got invested in that business? — A. My inventory last winter and the first of the year included the store and moving pictures and the w^hole property I got, store-building and the moving picture hall, and the ware- house, $14,700. Q. Do you operate this moving picture machine yourself? — A. Yes, sir. Q. Do you belong to any societies at Klawock? — A. Yes, I belong to Brother- hood, I am chairman in the Brotherhood Society. Q. Have you any interest in the cooperative store there? — A. No. I am the first one started it but they got me out so I went into my own business. Q. Do you belong to any church?— A. Yes. • Q. What church? — A. The Presbyterian Church since the first minister comes there. Q. When did you first join the church? — A. I believe it is in 1913. it is in there, 1912 or 1913. Q. Can you read and write the English language? — ^A. Yes; I can read a little and write a little ; jiist enough so that I can do my business myself. I read enough and write enough to take care of my books in my own business. Q. How long has your father been in this country? — A. Why, I could not tell you exactly, but I believe he has been in here 38 or 40 years. Q. What was his business? — A. Why. he did not have any business at all — just a common laborer in the cannery; — but he was doing fine work and he got in the fish business as fish boss. He did that all the rest of his life. That's for a company, of course. Q. Is he dead or alive now? — A. He is dead over a year ago. Q. Are you a married man? — A. Yes, sir. Q. Who married you? — A. A minister named David Waggoner. Q. Have you any children? — A. Yes, I had four children; three alive and one dead. Q. Did you go to school? — A. Yes; I was in the public school in Klawock. Q. How far did yoii get in school? — A. I did not go over fourth grade. Q. What business were you in before you went into the mercantile busi- ness? — A. I picked up the engineer courses after I left school. That's the trade I got before I do the store business. Q. How long did you follow it? — A. Follow which? Q. How long did you follow engineering? — A. About six and one-half years, and I couldn't get no papers when the law passed that all engineers must have the papers, and I did not have enough education to pass the examination, so I quit the trade. Q. Have you taken up the question of religion and joined a church? — -A. I told him before I joined the church soon as the first minister comes. Q. Have you ever voted in your life? If so. when and where? — A. Yes; I voted twice that I know of — once in Craig, that's two years ago, and once in Ketchikan, last February. Q. What did you vote for at that election at Craig — for Delegate? — A. Yes; I believe it's for Delegate of Alaska. I vote for Mr. Wickersham at the time. Q. Are you one of those that came here last November to vote for Delegate? — A. Yes, I am one of them. Q. Did you vote? — A. No; I did not. Q. Why not? — A. Because my mother was a native. Q. Who would not let you vote? — A. Well. I tell you, I name the gentlemens that says -^-e ain't got no rights to vote. Mr. Hal Gould, he is the first one, and Mr. J. P. Smith, he is the second man that got up; Mr. Fred Butler was there reading the law saying that we had no rights to vote. And Mr. Coker says tro it out — all of these natives out of this election board. Q. Was Mr. Gould one of the judges of the election board? — A. Yes, sir; he said he was when I asked him who he is. 336 WICKEKSHAM VS. STJLZER. Q. If you wovild have had the right to vote on that day who w^ould you have voted for? — A. I believe in my own judgment I would vote for Mr. Sulzer. Q. That was your intention? — A. Yes, sir. Cross-examination by Mr. Wickersham : Q. In what country was your father born? — A. I could not tell you exact which part of the old country he was born. It was in Austria. He have all his record on his books of his family and what he done all his life, with his citizen papers in it, which was all destroyed by fire just a few months after his death; but I think that you can find some of his records in this Moose lodge in Craig — in which part of the country he was born and his death. Q. Have you got a copy of his naturalization papers? — A. No; I have not. Q. Do you know where he took out his final papers, if at all? — A. Why, I believe he said once he had his first papers in San Francisco. Q. Is that all he ever said about it? — A. That's all I know of. Q. You do not know that he ever took out his second papers? — A. I do not. Redirect by Mr. Sellers : Q. Did your father ever join or enlist in the United States Navy? — A. Well, I believe he is ; he said so ; that he was in the Navy when he first came out the old countiT- That's the way he got up to this country. Recross by Mr. Wickersham : Q. What was your father's name? — A. John Peratovich. Q. Did he say that he ran away from the Navy to this country? — A. Well, I won't say ; I don't know I'm sure, cause he won't say how he ran away and how he got up to this country. Q. Did he say what was the name of the vessel he came to Alaska on? — A. He came over Alaska from San Francisco in a sailing schooner. Q. Did he say the name of any naval vessel he served on? — A. No; I don't remember any of them ; he might, but I don't hear him name any vessel he was on when he came to or in ^Alaska. Q. Well, you are not sure that he ever was an enlisted man in the Navy, are you? — A. No; I am not sure of it; but he used to tell us what a hard time he had on ships. R. J. Peratovich. Subscribed and sworn to before me this 25th day of July, 1917. [seal.] Will H. Winston, Notary Ptiblic for Alaska. My commission expires June 12, 1921. C. D. CALHOUN: Q. Please state your name. — A. C. D. Calhoun. Q. Where do you live? — A. Craig. Alaska. Q. How long have you lived here? — A. Two years; that is, permanently. Q. Where did you live before that time? — A. Seattle. Q. Have you any official position? — A. I am deputy United States marshal. Q. How long haVe you been a deputy marshal? — A. Since May 10, 1915. Q. Were you here at the election November 7 last? — A. I was. Q. Do you know the names of these Indians and half-breeds that have been subpoenaed to be present at this hearing? — A. I do. Q. How long have you known them? — A. I came to Alaska in 1909, and have known most of them since that time. Q. Where have they been living since you knew them? — A. At Klawock. Q. Where is the voting place of Klawock? — A. You mean for Klawock? Q. Yes. — A. At Craig. Q. Were you here when these men presented themselves to vote, last election, November 7, 1916? — A. I was. Q. Did these parties vote? — A. They did not. Q. Why not? — A. They were informed by the judges of election that they had no right to vote, on account of their being Indians. Q. Since the time that you have known these half-breeds and Indians, who presented themselves on that day for the right to vote, have they lived the same as white people, and have they severed their tribal relations? — A. They have severed their tribal relations and are trying to live same as white people. Q. Please state what you know of their ways of living and their business. — A. The majority of them live by fishing, some are in the mercantile business, boat building. WICKERSHAM VS. SULZEE. 337 Q. These parties that have been mentioned, can they read, write, and speak the English language? — A. I know from personal obseiwation that they can. Q. Were you present when they voted two years ago last election? — A. I was. Q. Were their votes protested at that time? — A. They were not. Cross-examination by Mr. Wickeesham : Q. Mr. Calhoun, If you saw a saloon keeper sell one of these Indians or half- breeds intoxicating liquors, would you have him arrested for it? Mr. Sellees : I object to that as incompetent and immaterial. A. I would. Q. You know they are Indians, don't you? — A. I do. Q. Tou know they reside on an Indian reservation, on an island set apart for their use by an order of the President, don't you? — ^A. I do. Q. You know that the Government teacher, employed by the United States' Bureau of Education, is there in charge of their schools and business, don't you? — A. I do. Q. You know the white children do not go to the school on that reservation, don't you. — A. I do. Q. You know that white men are not allowed to settle on that reservation, don't you? — A. Unless they were located there prior to the time it was set aside. Q. There are about 300 Indians residing on that reservation, are there not?— A. Yes. Q. How many white men and women and children reside there, and what do they do? — A. Nine, to my knowledge; missionaries, school-teachers, fish- ermen. Q. How many missionaries, including children? — A. Four. Q. Mr. Bromley and his Avife and two children? — A. Yes, sir. Q. How many in Mr. Hibb's family? — A. Two. And during school time they have another teacher living there. Q. What other Avhite men or persons live there? — -A. George Nelson, Jack Brady, Mose Morrison ; there may be others, but that is all that I can think of now. Q. Are they married to Indian women? — A. Brady is not. Q. How does it come that he is allowed to remain there? — A. He has a settler's right, as I imderstand it. Q. Secured prior to the withdrawal of the land for Indian purposes? — -A. I think so. Q. Do you know Judge Jennings, district judge of this division, and his politics? Mr. Selleks. I object to that as being incompetent and immaterial. A. I do. Q. He's a Democrat? (Same objection by Mr. Sellers.) A. He is. Q. Is Charles Fox, commissioner of this precinct, also a Democrat? (Same objection by Mr. Sellers.) A. He is. But had absolutely nothing to do with the election. Q. Who appointed the election officers in this precinct for the election held November 7, 1916? (Same objection by Mr. Sellers.) A. Judge Stackpole, of Ketchikan. Q. Is Craig in Ketchikan precinct? — ^A. Not voting precinct. Q. Commissioner's precinct? — A. A commissioner's precinct is anywhere in the division, I suppose. Q. Well, what I want to know is, if the matter of the appointment of the election officers in Craig, at that election, was not under the control of the Democrats? (Same objection by Mr. Sellers.) A. It was not. Q. Well. Judge Jemiings appointed the commissioner, didn't he? — A. Yes, sir. Q. And that commissioner appoints the election officer, does he not? — ^A. He does. Q. And Judge Jennings could remove the commissioner at any moment without stating any cause for it, could he not? (Same objection by Mr. Sellers.) A. He could. 13289—17 22 338 WICKERSHAM VS. SULZER. Q. And that commissioner supported Mr. Sulzer, did lie not? — A. He did not. if I have been riglitly informed. Q. Is that all you know about it?— A. I did not see him vote. Q. There is, hovpever, no suspician in your mind that I had any influence in the control of the appointment of those election officers, is there? Mr. Sellees. I object to the question, because it is incompetent, irrelevant, and immaterial, and, further, it calls for the conclusion of the witness. A. No, sir. Redirect examination by Mr. Sellers : Q. I would like to ask, Mr. Calhoun, if Judge Stackpole was not a Republican, and that he appointed this election board without the influence of Judge Jen- nings?- — A. There was no influence brought to bear to my knowledge, and Judge Stackpole is a Republican. C. D. Calhoun. Subscribed and sworn to before me this 25th day of July, 1917. [SEAL.] Will H. Winston, Notary Public for Alaska. My commission expires June 12. 1921. GEORGE DEMMERT : Q. Please state your name. — A. George Demmert. Q. Are you a native, Mr. Demmert? — A. Yes, sir. Q. How old are you? — A. Well, I am about 33 now, pretty near 34. Q. Where were you born? — A. Shakan, Alaska. Q. Where do you live? — A. I am living at Klawock now. Q. How long have you lived there? — A. I have lived there about two years and nine months at Klawock. Q. Have you ever attended school?— A. Yes, sir. Q. What school? — A. Sitka mission. Q. How long did you attend school in Sitka? — A. About seven years. Q. Can you head and write the English language? — A. Yes, sir. Q. What is your business, Mr. Demmert? — A. Well. I am storekeeper and manager now. Q. What is the nature of that business? — A. General merchandise. Q. How long have you been in that business? — A. Two years and nine months — since I moved to Klawock. Q. Who owns the business? — A. Why, the natives; the company all belongs to the natives. Q. What business were you in before that? — A. Why, I have been working on gas boats in the summertime ; in the wintertime I have been building .boats with my father. Q. Do you belong to any church? — A. Yes, sir; Presbyterian. "Q. When did you first join that church? — A. Well. I first joined the church at Sitka, when I went to school. I joined the church about 1897. Q. Are you married? — A. Yes, sir. Q. Have you any children? — A. Yes, sir. Q. Do they attend school? — A. Yes, sir. Q. How long have they attended school? — A. Why, the oldest one has at- tended school about three years and the youngest about two. Q. Have you any property? — A. Yes, sir, Q. What is it and how much are you worth? — A. I am a third owner in the Winifred D., about a $3,000 share, and I am In the Klawock Commercial Co. about $550, and I got a home valued about $1,200. Q. Do you hold any office in that company? If so, what is it?— A. Manager and storekeeper. Q. What are the duties of a manager?— A. He sees that everything is going all right. Q. What kind of a home have you got?— A. I got a bungalow with five rooms in it. Q. How is it furnished? By modern furniture? — A. Yes. sir. Q. Do you belong to any society at Klawock? — A. Yes, sir. Q. What is it?— A. The Brotherhood. Q. Do you belong to any literary society? — A. Yes, sir. Q. What kind of a city government have you at Klawock? — A. We got a council, a mayor, 12 men, a judge, and a marshal ; that's all. WIOKEESHAM VS. STJLZER. 339 Q. Do you hold any of those offices? If so, what is it? — A. Just a member of the council. Q. Do you know who the President of the United States is? — A. Yes, sir. Q. Who is it?— A. Wilson. Q. Is this his first or second term? — A. Second term. Q. Do you know who the governor of the Territory is? — A. Strong. Q. Have you ever voted? — A. I wasn't in Klawock the first year to vote. Q. Did you come over here November 7 last and try to vote? — A. Yes, sir. Q. Did you vote? — A. No; they would not let me vote. Q. Who wouldn't let you vote? — A. The judges. Q. Why? — A. They claimed I wasn't civilized. Q. Have you given up all your tribal relations? — A. Yes, sir. Q. And living like a white man? — A. Yes, sir. Q. If you were allowed to vote at the last election, November 7, 1916, who would you have voted for? — A. Mr. Sulzer. Q. What position was Mr. Sulzer running for? — A. Delegate of Alaska. Q. Who opposed him? — A. Mr. Wickersham. Q. Where did you come to vote at the last election? — A. At Craig. Cross-examination by Mr. Wickersham : Q. Mr. Demmert, you are a native-born Indian, are you not? — A. Yes. sir. Q. You live on the Klawock Indian Reservation, do you not? — A. Yes, sir. Q. How many Indians live on that reservation? — A. I don't know just exactly. Q. It was stated yesterday that there are about 300 natives living there ; is that about right? — A. Yes; that is pretty near. Q. How many white people live there? — A. About six or seven. Q. That number includes the United States Government school teacher and bis wife, the missionary, his wife, and two children, does it? — A. Well I did not figure the two children, but there was another teacher, Miss Forest. Q. Are white men allowed to settle on the island now? — A. I don't know. Q. Who has chai'ge there for the Government?— A. Mr. Hibbs. Q. Mr. Hibbs left here yesterday with a gasoline launch to find more wit- nesses in this case. Did he bring you here? — A. Yes, sir. Q. You say you and your children went to school. Is it not true you went to the mission school at Sitka and your children now go to the Government school on the Klawock Reservation? — A. Yes, sir. Geoege Demmekt. Subscribed and sworn to before me this 26th day of July, 1917. [seal.] Will H. Winston, Notary Public for Alaska. My commission expires June 12, 1921. Contestant's Exhibit A. Territory of Alaska, office of secretary, Juneau, Alaska. Chapter 24. An act (S. B. 21) to define and establish the political status of certain native Indians within the Territory of Alaska. Be it enacted by the Legislature of the Territory of Alaska: Section 1. Every native Indian born within the limits of the Territory of Alaska and who has severed all tribal relationship and adopted the habits of a civilized life in accordance with section six (6), chapter one hundred and nine- teen (119), 24 Stat, at Largo, three hundred ninety (390), may, after the passage and approval of this act. have the fact of his citizenship definitely estiiblished by complying with the terms hereafter set forth. Sec. 2. Every native Indian of the Territory of Alaska who shall desire a certificate of his citizenship shall first make application to a United States Government. Territorial, or municipal school, and shall be subjected to an ex- amination by a majority of the teachers of such school as to his or her qualifi- cations and claims for citizenship. Such examination shall broadly cover the general qualifications of the applicant as to an intelligent exercise of the obliga- tions of suffrage, a total alnindonment of any tribal customs or relationship, and the facts regarding the applicant's adoption of the habits of a civilized life. Sec. 8. Any native Indian of the Territory of Alaska who shall oljtain a cer- tificate in accordance v\-ith section two (2) of this act, which eerlificate shall set forth that a proper examination has been duly held and the applicant found to have abandoned all tribal customs and relationship, to have adopted the 340 WICKEESHAM VS. SULZER. ways and habits of a civilized life and to be properly CLualified to iutelligently exercise the obligations of an elector in the Territory of Alaska, shall thereupon obtain an indorsement upon said certificate by at least five white citizens of the United States who have been permanent residents of Alaska for at least one year, who were not members of the examining board as provided in section 2, to' the effect that such citizens have been personally acquainted with the life and habits of such Indian for a period of at least one year and that in their best judgment such Indian has abandoned all tribal customs and relationship has adopted the ways and habits of a civilized life, aud is duly qualified to ex- ercise the rights, privileges, and obligations of citizenship. Sec. 4. Upon securing such certificate as provided by sections two (2) and three (3) of this act properly signed in ink, the applicant shall forward the same, together with an oath duly acknowledged to the effect that such applicant forever renounces all tribal customs and relationships, to the United States district court for the division in which the applicant resides, praying for the granting of a certificate of citizenship. Sec. 5. Upon receiving such application the judge of the district court shall set a day of hearing on such application which shall not be less than sixty (60) days from the date of receipt of such application, whereupon the clerk of the district court shall post a notice in his office containing the name of the appli- cant and the facts set forth in his application and the date set for the hearing upon the application, and shall immediately forward a copy of such notice to the applicant, whereupon the applicant shall post such notice or a copy thereof in a conspicuous place at the post office nearest to his or her residence. Sec. 6. Upon approval of such application by the judge of the United States district court for the division in which the applicant resides, the said judge shall issue a certificate, certifying that due proof has been made to him that the said applicant is " an Indian born within the territorial limits of the United States, and that he has voluntarily taken up within said limits his residence separate and apart from any tribe of Indians therein, and has adopted the habits of civilized life." Said certificate, when presented in court or otherwise, shall be taken and considered as prima facie evidence of the truth of the statements therein contained. Approved April 27, 1915. peoof of service of notice of taking deposition of indians, hai,f breeds, and white peesons now eesiding at klaavock and ckaig, alaska. State of Washington, County of King, ss: . A. WINDT, being first duly sworn, upon oath deposes and says that he is a citizen of the United States, a resident of the State of Washington, living at Seattle, in King County, in said State ; above the age of 21 years ; that he re- ceived, the attached notice of the taking of depositions in the above-entitled cause on July 9, 1917, and that on July 9, 1917, he duly served the same upon James Wickersham, contestant above named, by delivering to and leaving with said James Wickersham, at Seattle, Wash., a true and correct copy of the at- tached notice. A. WiNDT. Subscribed and sworn to before me this 9th day of July, 1917. [seal.] r. jNi. Jones, Notary Puhlic in and for the State of Wnshington, residing at Seattle. NOTICE OF TAKING DEPOSITIONS OF INDIANS, HALF BREEDS, AND WHITE PEESONS NOW EESIDING AT KLAWOCK AND CEAIG, ALASKA. To James Wickersham, contestant in the obove proceeding: You ai-e hereby notified that the contestee, Charles A. Sulzer, is desirous of obtaining the testimony of the following named persons in the foregoing con- test, and will apply to Will H. Winston, Esq., a notary public in and for the Territory of Alaska, residing at Ketchikan, Alaska, for a subpcena to issue to each of said following-named witnesses, aud will take the testimony of each of said witnesses at the town of Craig, Alaska, in the public school building there, beginning at the hour of 10 a. m. in the forenoon on Wednesday, July 25, 1917, and from day to day thereafter until the taking of said testimony is completed. WICKEESHAM VS. SULZEE. 341 Said testimony will be taken before Will H. Winston, notary public, and the following-named persons who are now living at Craig and Klawock — Craig, Alaska, being the voting precinct of said voters-— and they will be subpoenaed and their evidence taken on said examination before said officer at the said time and place hereinbefore mentioned. The names of the Indians and half-breeds are C. E. Demmert, Emma Dem- mert, Spencer Williams, George Demmert, Jack Peratovich, R. J. Peratovich, James Peratovich, William Jones, John Darrow. J. S. Johnson, George Roberts, Henry Roberts, George Fields, Peter Wilson, J. K. Williams, John Skan, Fred Williams. Roy Williams, Richard Collins, A. W. Thomas, Sam Gunyah, Arthur James, William Gunyah, Albert Thomas, James Rowen, Peter Scott, Jimmie Jackson, Donald Kathlean, Maxfield Daklin, and Lee Anneskit. The above- named persons were residents and voters in Craig precinct on November 7, 1916, the date of the last general election in Alaska for the election of Dele- gate to Congress from said Territory, and each of said persons presented himself before the election board of that precinct, composed of Charles Fox, Rev. Koker, and Harold Gould, for the right to exercise their right of franchise, and offered to swear their vote in, but the same was refused ; that each of the above wit- nesses were leading civilized lives, were educated, and in every way qualified to vote, and that they were desirous of voting for Charles A. Sulzer. You are further notified that this contestee at the time and place above men- tioned will also take the evidence of C. C. Hibbs, Mrs. C. C. Hibbs, Rev. Brom- ley, of Klawock, and C. D. Calhoun, of Craig, as to the facts of things above stated, and that the afore-mentioned Indians and half-breeds had severed their tribal relations. Please take notice and have your representative, agent, or attorney present at said time and place. Charles A. Sulzee, By Hellenthal & Winn, Attorneys for Contestee. Ketchikan, Alaska. July 2, 1917. notice of time and place foe taking depositions of witnesses. To the Hon. James Wickeesham, contestant : You are hereby notified that the testimony of G. A. Adams, E. E. Adams, Russell Bowen, W. R. Hayes, Robert James, William Priest, and of other wit- nesses on behalf of contestee, whose names are to the contestee unknown, all of whom reside at or near Nome, Alaska, will be taken before D. B. Chace, notary public for Alaska, at the office of Hugh O'Neill at Nome, Alaska, at 2 o'clock p. m. on July 25, 1917, and continuing thereafter until such depositions are completed. Hereof you will take due notice. Claeles a. Sulzee, Contestee. By Thomas J. Donohoe, Attorney for Contestee. PEOOF OF SEEVICE OF NOTICE OF TIME AND PLACE FOE TAKING DEPOSITIONS OF witnesses. State of Washington, County of King, ss: A. WINDT, being duly sworn, says : That he is a citizen of the United States, of lawful age, and a resident of the city of Seattle, in King County, Wash. ; that he knows personally the above-named contestant, James Wickersham ; that on June 27, A. D. 1917, affiant received the foregoing notice of time and place' for taking depositions in the contest above entitled, and on the same date affiant personally delivered a duplicate thereof, signed by Charles A. Sulzer, contestee, by Thomas J. Donohoe, attorney for contestee, to the said James Wickersham in person, at Auburn, within King County, Wash. ;' that said service was made by delivery as aforesaid to the said Wickersham in person by this affiant in person at about 4.50 o'clock p. m. of the said June 27, A. D. 1917. A. WiNDT. Subscribed and sworn to before me this 28th day of June, A. D. 1917. {seal.] r. m. Jones, Notary Ptihlic for Washington, residing at Seattle. 342 WICKERSHAM VS. SULZER. DEPOSITIONS. Be it remembered that, pursuant to the notice hereto annexed, and on the 25th day of July, 1917, at 2 o'clock p. m. of said day, at Nome, Alaska, before me, D. B. Chace, a notary public in and for the Territory of Alaska, personally appeared Herbert Spencer, Russell Bowen, G. A. Adams, Robert James, W. R. Hayes, E. E. Adams, Louis Ericson, Fred Larsen, and Frank Martin, witnesses produced on behalf of the contestee in the above-entitled action now pending before the House of Representatives of the United States, who, being first by me duly sworn, were then and there examined and interrogated by Hugh O'Neill, of counsel for contestee, and by G. J. Lomen, of counsel for contestant, and testi- fied as follows : HERBERT SPENCER, being duly sworn by the notary, testified as follows : By Mr. O'Neill: Q. How long have you resided in Alaska, Mr. Spencer? — A. Since 1897. Mr. Lomen. I want to object to any testimony being given on the part of Mr. Spencer on the ground that he is not named in the notice of taking of deposi- tions. Mr. O'Neill. If you look the notice over, it says " and other witnesses." Mr. Lomen. Yes, I know ; but I don't consider that complies with the statute. Q. Are you familiar with the place called Unalakleet, in the second division. Territory of Alaska? — A. Yes, sir. Q. How frequently have you been there during the time which you have been in Alaska? — A. Since I have been in Alaska — let me see — I have been there so many times I could not just tell you how many times I have been in and out of there. I have been in and out of there so much and had a camp there. Q. You are thoroughly familiar with the population of that place, are you not? — A. Yes, sir. Q. I hand you this document and ask you if you are familiar with the names upon the back of that document. [Paper handed to witness.]— A. Well, there is a large part of them here that I am familiar with. I am familiar with the names of a large number here, but then there are others I am satisfied that I would know if I saw them, but I don't recognize them by these names, but then I would know them by their face, you know. Q. You recognize a great many of Eskimos on that list ?— A. Yes, sir. Q. From your acquaintance with the Eskimos now living at Unalakleet, da you know as to whether or not they possess sufficient knowledge to intelligently exercise the obligation of suffrage? Mr. Lomen. That is objected to as irrelevant, incompetent, and immaterial ; no proper foundation laid. A. I don't know of any that do, according to my light. Q. These Eskimos that are now living there have never severed their tribal relations Mr. Lomen. That is objected to for the same reasons and because the witness has not shown himself competent to testify as an expert. Q. I asked you if they have severed their tribal relations, or, in other words, are they still living ^, ^ xt, Mr. Lomen. Let me add one more objection ; also for the reason that the ques- tion assumes facts not in evidence and facts that do not exist. Q. In other words, are these natives still pursuing the same habits that they had pursued when the white people first came to this country? Mr. Lomen. Same objections. A. They are pursuing the same habits that they have ever since I came to this country, that I have ever known them to pursue— fishing, hunting, and trading. Q Do you know of any Eskimos now living at Unalakleet that has sufficient intelligence to know the difference between the Democratic and Republican or Socialistic Parties? Mr. Lomen. Same objections. A. I don't know of one. Cross-examination by Mr. Lomen : Q Do you know the difference between the Republicans, Democrats, and Socialists as to their various programs yourself; could you define them, what the differences are?— A. I know the two old parties, the two old parties I know ; I can not exactly explain it the way I would want to. Q. Are you a citizen of the United States?— A. I am. WICKEESHAM VS. SULZEE. 343 Q. Where were you born? — A. Born in New York State. Q. What is your business? — A. A man-of-war's man. Q. And how long since you were a man-of-war's man? — A. I was paid off the 6th of August. 1892. Q. And what have you been doing since? — A. After I left the States I came to this country, and have been prospecting and mining and hunting, fishing, trapping, and steamboating. Q. Have you resided at Unalakle'et during any of this time? — A. Have I resided there? Q. Yes. — A. I have camped there; that is. I have stopped there a few days at a time coming over the portage and leaving, and when on prospecting trips have camped there. Q. How many times have you been there during the last 10 years? — A. Let me see — the last 10 years — four times that I can recollect. Q. What year was the first time? — A. I was there and ran a road house up in the portage there. Q. How far is the portage from Unalakleet, from the Unalakleet voting precinct? — A. When I went there I went up to this road house and came back in the spring. I was trying to recollect what date it was. I don't remember ; I kept no diai'y. Q. The year is sufficient. — A. I think that was the first time in the last 10 years, when I went up to take charge of the little road house ; it was called — they used to call it — some called it the Timber Road House and different names. It was alongside the trail, this side of the five-mile village, about 40 miles from Unalakleet, 5 miles the other side of Serosky's road house. Q. What year was it? — A. Well, I can not swear to the year, as I say I didn't keep a diary, you know, and when it is gone it is past. Q. Let's not get too much in the record, the lady will make too much money, you know. Now, when was the second time you were there? — A. You mean the next time after I left the road house? Q. Yes, sir ; the next time. — A. Well, I came down that same time from the road house that following spring — that same spring — I had been there that spring, but it was getting late and I went down and caught the schooner there. Q. What year was this ? — A. The dates I can not swear to ; I could not swear to the dates at all. Q. Can you tell the year? — A. The dates are the year, that is what I mean. Q. I don't want the dates; what year was it? — A. Well, if you don't know the date of the year, why you can not tell the year. Q. It is easier to tell the year than it is to tell the dates. Mr. O'Neill. He said he didn't remember the year, it was within the last 10 years. Mr. LoMEN. He was there four times all together. I want to know when he was there, the first, second, third, and fourth times, as near as he can state, Mr. O'Neill. State how much time elapsed from the first time you were there until you were there again? A. Well, I was through there ; I have been through there so many times I kind of get mixed up. I was through there prospecting ; this is since ; yes, this is since I was prospecting there. Q. How many years since you were there the second time? — A. I was there three summers ago. Q. That is the last time? — A. Yes, sir. Q. Were you there last fall at election time? — A. Last fall I wasn't there; no, sir. Q. You weren't there at election time? — A. No, sir. Q. And it is three years ago now since you were there? — A. Let me see. Yes, I went through there along, well, it was along, it was late in the spring when I went through there and went to Dime Creek stampede ; went over the portage. Q. Three years ago. Is that three years last fall or three years ago from this time?— A. Well, it was summer before this last summer. The summer before last when the stampede was on there. Q. Who did you speak and talk to at Unalakleet when you went through three years ago? — A. Stephen. Q. Stephon Ivanoff? — A. Yes, sir. Q. Who else? Can you recollect a single other person than Stephon that you saw?— A. Well, Steinhauser and Tommie Powers. Q. Anybody else? — A. And David. I don't know what his last name is, he is a native. 344 WIOKERSHAM VS. SULZEE. Q. You don't know who voted there last fall? — A. Not outside of these names. Q. Well, you don't know anything about whether they voted or not? — A. No, sir ; only I just take it from this paper. Q. I know, but you are just assuming something? — A. Yes, sir. Q. You don't know anything about who voted, nor for whom they voted? — A. No, sir. Q. You don't know a thing about that. How many natives living at Unalak- leet last fall are you personally acquainted with? — ^A. Well, by their first names and faces Q. No, I mean personally acquainted with ; you know who they are? — A. Well, there are two I know personally there that live right there all the time, that were there then. Q. Well, who are they here on this list? — A. Harry Saxie and Rock. Q. Do you know anybody else personally? — A. Yes, sir; there is Susick. Q. Is that the first or last name? — A. That is the first name; I think that is the first name by the Eskimos. He goes by the name of Big Erick, too. Q. Is he an Eskimo? — A. He is an Eskimo ; yes, sir. Q. That is the extent of your acquaintance with any of the Eskimos down in that country? — A. Oh, no ; I know a good many of them by sight. Q. Well, going back now, you say you have been there twice ; now, when was the third time you were there? — A. Well, when I was prospecting there. Q. How many years ago? — A. That is within 10 years. Q. Now, how long did you stop within the Unalakleet voting precinct each of the times that you weer there — in number of days — how many days the first time?- — A. The first time I was there? Q. Yes. — A. The first time I was there in that place? Q. Yes ; within the last 10 years. — A. Oh, in the last 10 years ; let's see — the last time I was there M-as about Q. I am speaking of the first time you were there ; how many days did you stop? — A. Well, I didn't stop only two days. Q. And how many days did you stop the second time you were there? — A. When I came back I stopped a little over two weeks. Q. And the third time, how long did you stop? — A. Let's see, about five days, and then came back and stopped about between four and five days. Q. Is that the last time, then, that you were there? — A. No; that was the same time I was prospecting. Q. How long did you stop the last time you were there? — A. The last time I was there I was there about a week. Q. This was three years ago next fall, is it? — A. Well, it was summer before last when I came through. Q. Now, what tribe of Eskimos do the Eskimos of Unalakleet belong to? — A. Well, as far as tribal names are concerned, they are Malamutes to me ; that is all I ever heard them called. Q. Do you know of any other tribe in Alaska than the Malamutes ; and if so, what tribal names can you give them? — A. In the whole of Alaska? Q. Yes ; so far as you know anything about it. — A. Well, if you consider the Indians Eskimos Q. What I am talking about now is how many tribes you know of, desig- nating them by name? — A. Well, there is the Hoonahs, the Clinkoots, the AUuts, the Simsonans, the Hedas ; that is about all the different tribes that I can recollect. Q. Now, those you have mentioned, outside of the Malamutes, do not all of them live this side of the Kuskoquim? — A. No, sir. Q. All on the other side? — A. Yes, sir. Q. Now, are the Malamutes all of one tribe? — A. They are, so far as my knowledge is concerned. Q. How many places north of the Kuskoquim have you been in contact with the Malamutes? — A. Let's see, there are villages at the mouth of the Yukon that I have been in that I don't know the names of — at the mouth of the Yukon — St. Michael, Stibbons. Seclatauk, Galsovik, and Unalakleet. Do you want me to follow the coast up? Q. Yes; go on and follow the cotst? — A. Chatulig and Kuyuk village, Golovin Bay, White Mountain, Council, Bluff, and the old village that was down by the fort here, it used to be there. Q. Near Nome?— A. Yes, sir; it used to be near where the fort stands, but it is not there now, and Cape Nome itself. WICKEESHAM VS. SULZEE. 345 Q. Do you know of the Malamutes farther north than that? — A. Well, yes; up to Port Clarence and Cape Prince of Wales. Q. Have you been as far north as Barrow? — A. No; I was not up to Point Barrow. Was up in the Arctic Ocean, but not to Point Barrow. Q. Do all of those villagers belong to the same tribe of Eskimos? — A. Well, they do as far as I know of. I have never heard of any different name to their tribe. Q. Now, what Eskimo chiefs have you know in your lifetime north of the Kuskoquim? — A. Well, Saxie. Q. Where does he live? — A. I believe he is in St. Michael. Q. And what is liis first name? — A. Saxie is the only name he goes by. The white men call him'Carver. Q. Is he what they call a medicine man? — A. Well, he is called a chief by the natives, as I understand, they always told me to that effect. Q. Do you know the difference between a chief and a medicine man? — A. A chief has power to conduct the actions of the tribe and the medicine man is the man who is supposed to heal the sick of the tribe. Q. And do you know of any laws among the natives of Alaska north of the Kuskoquim, and if so who lays down those laws and how are they laid' down? — A. They go to the chief. Q. And the chief is a sort of a judge; is that the idea? — A. He is. Q. He settles their disputes among them, is that the idea? — A. That is what he does. Q. Now, does he lead them into battle or anything of that kind? — A. He is supposed to. Q. Do you know of any battles that have ever been conducted by any of these Malamutes? — A. I do not. Mr. O'Neill. That is objected to as irrelevant, incompetent, and immaterial. Q. Who supports the chief, or who does he support? Mr. O'Neill. Same objection ; same grounds. A. The chief hunts for himself and will give to others ; that is, as long as he is able to do it. Q. Do you know of anything that the chief really does as a chief? Does he occupy any executive power that you know of, and if so, what is it? — A. Noth- ing outside of settling any kind of a dispute or anything like that. I haven't seen them using any power over the natives. Q. You never heard of such a thing? — A. Not amongst themselves. Q. Is the authority exercised monarchical or democratic? — A. Is what? Q. Does he exercise power of a monarch among the natives or is he elected and has he a cabinet or anything of that kind ? — A. Not to my knowledge. He is simply placed there, as I understand it, through his ability to be square with all of them. Q. This one man commands a little more respect than another? — A. He does. Q. Isn't that all there is of it as far as you know? — A. That is as far as I can see. Q. That is as far as you know about it. A little smarter than some of the rest of them, he is supposed to be? — A. He is supposed to be. Q. There is no such thing as taxation or any law laid down, written or other- wise, so far as you know among the natives, are there? — A. I haven't seen any. Q. No. Never heard of it. Now, these Malamutes are making their own living, aren't they? — A. They fish and hunt as far as they are able unless they happen to be crippled or something like that, and then the rest will assist him. Q. And they trade, do they? — A. Yes, sir. Q. And they own boats, do they not? — A. Oh, yes. Q. And they cut wood, do they not, and sell it? — A. Some. Q. Some of them do. Now, do they live exclusively in igloos or do they live in shacks or shanties? — A. Cabins and shacks. Q. And log houses? — -A. Yes, sir. Q. And do they buy groceries? — A. Yes, sir; when they have the money. Q. And they buy ready-made clothing? — A. Some do. Q. And beads? — A. Some do. Q. And jewelry? — A. Some of them. Q. And cooking utensils? — A. Yes, sir. Q. And guns? — A. Yes, sir. Q. And furniture? — A. Some do. 346 WICKERSHAM VS. SULZEE. Q. Now, which oue of the relatives who is on this list you referred to a little while ago doesn't live in cabins and has no furniture and doesn't buy shoes and ready-made clothing? Mr. O'Neill. Ob.iected to as irrelevant, incompetent, and immaterial and not in any way tending to show that the native has knowledge sufficient to exercise the obligation of suffrage or that he has adopted the habits of civilized life and severed his connection from his tribe. Q. Which of the names on the list can you determine do not live practically the same as the white men do down there at Unalakleet? Take the list and look at it. Give us the names of those who do not live practically in the same manner as the white people do down there at Unalakleet. — A. As the white people that are there? Mr. O'Neill. Yes ; that is what he means. Q. Yes, sir. — A. There is a storekeeper and a road-house man Q. Are they natives? — A. No, sir. Q. I am not talking about anybody but the Malamutes now. — A. There is Trigger and Stephon who has got the store, and there is Tommie Powers of the road house — they certainly don't live like he does. Q. I will ask you whether the children of these natives attend any school? — A. Yes, sir. Q. Do they generally? — A. Yes, sir. Q. Do you know any natives more than 50 years of age down there at Una- lakleet, and if so, who? — A. I don't know of any alive that are over 50 years that I know of. Q. They are comparatively young people, all of them? — A. Well, middle-aged. Q. And Unalakleet has been settled by whites about how long to your knowl- edge? — A. I was there in 1897 in the spring of the year on a trading schooner, and it was an old village then, and I believe that Mr. Englestadt was there running a post there. Q. So there have been whites there, well, since 1897? — A. To my knowledge. I just saw Stephon there then. He is a Russian half-breed. Q. Do you know whether any of the natives at Unalakleet have ever attended any conventions or any meetings called by what you denominate a chief? — A. Outside of their dances I don't. Q. Well, were the dances called by the chief or was it a sort of a general frame-up among the natives? — A. Whether he set the special dates for those dances I could not say. Q. You don't know anything about that? — A. No; only that I saw him there. Q. All the meetings that you know of were in the nature of social amuse- ments, were they not? Did you know of any i^olitical meeting held by the natives at any time except so far as they participated in the political meetings of the white men? Mr. O'Neill. That is objected to on the ground the question assumes some- thing not in evidence. A. I do not. Q. Do you know of any meetings? — ^A. Dances and holidays, that is all I know of. Q. Now, do you know what proportion of the natives who are on that list that you have referred to can read and write? — A. (Referring to list.) I believe there are nine there. Q. Who can not read or who can? — A. That can read and write. Mr. LoMEN. That is all. Redirect examination by Mr. O'Neill: Q. Now, you say the children attend school ; that is a native school, it is not? — A. The mission school. Q. And there are no white children attend that school, are there? — A. Well, there are half-breeds. Q. Have you been up the Yukon River? — A. Yes, sir. Q. Have you ever been at Tanana? — A. I have. Q. You have observed the Indians at St. James mission? — A. I saw them around the mission near the white men's town. Q. And they all have log houses? — A. Yes, sir. Q. And their manner of living is similar, is it not, to the manner of living of the natives at Unalakleet? — A. It is similar; fishing, hunting, and steamboat- ing; and like that, you know. WICKEESHAM VS. SULZEE. 347 Q. Would you consider the natives of St. James mission capable of intelli- gently voting upon any political proposition? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial ; not the best evidence ; calling for the opinion of the witness, who is not shown to be an expert. Mr. O'Neill. You brought it out on cross-examination. A. Hardly. Q. Would you consider the natives of Unalakleet sufficiently intelligent to vote upon any political proposition? Mr. LoMEN. Same objection. A. No, sir. Mr. O'Neill. I will offer this list, which has previously been shown to the witness for identification, and ask that it be marked for identification. (Paper received for identification and marked by notary " Contestee's Exhibit A.") Q. Now, how many natives do you recognize upon that list of 44 names? Mr. LoMEN. Let him check them ofC with a pencil. Mr. O'Neill. Check oif with a pencil all that you know that are natives. — [Witness marks.] A. There are some I haven't marked that I am satisfied I know, if I would see them, but not by those names. Q. Do you know Mrs. T. A. Powers? — A. Yes, sir. Q. Is she an Eskimo? — A. Yes, sir. Q. I see you haven't marked her. — A. Well, I thought maybe you considered them the same rights as the white people. Q. You just marked those that are natives and not married to the whites? — ■ A. Yes, sir. Mr. LoMEN. How many did you mark there? Mr. O'Neill. He marked 11. A. There are others I am satisfied I know well, but not by those names. Some of them, there is a mistake in their names. Q. You have seen Eskimos at St. Michael, have you not, that live at CJnalakleet? — A. I have. Q. You have been around St. Michael considerable? — A. Yes, sir. Q. What were you doing at St. Michael ? — A. Longshoring ; working for the company and steamboating and fishing. Q. What is the custom of the natives upon this coast — that is, between here and St. Michael — with reference to moving any distance from the place of their home? — A. Well, they will winter in one village one winter, and they are very liable the very next winter to go to another village to live. Sometimes they will stop in one village for a considerable length of time, and then finally they shift again, but they will move back to their old camps oftentimes, the old villages ; they go and come. Q. Does the Eskimo ever remove himself for any long period of time from the place where he was born; that is, the place of his original home? — A. What would you consider a long period of time? Q. For instance, would you find a native that was born at Cape Prince of Wales permanently establish himself at St. Michael ; is that the custom of the race, or is it the custom of the race to remain settled in one particular local- ly? — A. In some instances — why, there has been a very few that have left their birthplace and never returned — in a few instances only. Q. That is always the custom of these various Indians you have men- tioned? — A. Yes, sir. Q. During all the time you have known of these various tribes of Indians and Eskimos that you have mentioned, have you observed as many as 5 per cent of them change their method of livelihood from that method that you first observed when you came to the country? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial. We are talking about the Unalakleet natives now, and it makes no difference what the other natives do. A. No, sir. Q. Have you observed any change in the method of livelihood with respect to the natives living at Unalakleet from the time that you first met them? — • A. -The only difference that I can see is that they have a little more, they dress a little better, and their houses are a trifle better than they used to be. Q. But they still live in the same fashion? — A. On that same principle. Mr. O'Neill. I think that is all. 348 WICKERSHAM VS. SULZER. Recross-examination by Mr. Lomen : Q. I want to ask you a question, and you need not answer it if you don't want to. Are you a Republican or a Democrat? — ^A. I don't belong to either party. Q. Did you vote last election? — A. I did not. Q. You have no interest in this case? — A. No, sir. I don't consider the two parties that are up — neither candidate for President — suitable. This is relative to the Presidency of the United States. Q. That is what I have reference to. That is all. By Mr. O'Neil. Q. And by speaking of that, you know a man in Alaska can not vote for President, do you not? — A. Yes; I know that. Q. And when you speak of not voting, you mean you are disgusted with the political principles of both parties? — A. I was. Mr. O'Neill. That is all. (Testimony closed.) Herbert Spencer. RUSSELL BOWEN, being duly sworn, testified as follows: By Mr. O'Neill : Q. Mr. Bowen, you were an election officer, were you not, at the last election on November 7, 1916? — A. I was. Q. What position did you occupy on the election board? — A. Clerk. Q. As clerk of said board did you, or did the board, at that time when that election was being conducted, have a registration book on the first page of which was printed the qualification of the voter, as follows : " Any person of the age of twentj'^-one years or more who is a citizen of the United States, who has lived in the Territory of Alaska one year and in the judicial division in which he or she offers to cast his or her vote thirty days immediately preced- ing such election, shall be entitled to vote at all elections held therein; pro- vided, that all idiots, insane persons, and persons who have been convicted of an infamous crime are excluded from such right and privilege, and provided further that no person shall be deemed to have lost his residence by reason of his -absence while in the civil or military service of the Territory, or the United States, nor while a student at any institution of learning, nor while kept a public charge at any poorhouse or any other asylum, nor while confined in any public prison, nor while engaged in navigation of the waters of this Territory, of the United States, or the high seas." Mr. LoMEN. That is objected to as irrelevant, incompetent, and immaterial. It is objected to for the further reason that so far as Delegate elections in Alaska are concerned, they are not governed by any law or statute which re- quires a registration such as is contemplated by the question asked. A. Well, am I to infer from that, from the question you asked, did we have a list of the voters of the precinct? Q. No ; a book with the language in substance what I read to you which the voter signed prior to his receiving his ballot? — A. Oh, no. Q. Did you have any registration book, or book of any character, which the voter signed prior to receiving his ballot? — A. No, sir. Mr. LoMEN. The same objection goes to all these questions. Q. And no such book was in the polling place at that time while that election was being conducted? — A. Not to my knowledge. Q. If it had been, you would have known it? — A. Surely. Mr. O'Neill. That is all. Cross-examination by Mr. Lomen : Q. As a matter of fact, the votes were registered, were they not, as they were cast? — A. Every voter, as he got his ballot, his name was taken down by both clerks. Q. By the clerks of election? — A. Yes, sir. Q. And after the polls were closed the votes were counted by the judges of election and were certified to, were they not? — A. They were. Q. And sent to the proper authorities, the clerk of the court, and the governor of the Territory of Alaska?— A. I presume the clerk sent them to the governor. They went to the clerk. Q. Were you present when the votes were counted and declared by the judges? — A. I was. Mr. Lomen. That is all. WICKERSHAM VS. SULZEE. 349 Redirect examination by Mr. O'Neill : Q. Wlaeu tliose names were talcen down were they taken down without the request of the voters ; that is, without tlie linowledge of the voters or without their suggestion? — A. When a voter came up to get his ballot the clerks pro- ceeded to write the name on the list. Q. But not at the request of the voter? — A. Certainly not. Recross-examination by Mr. Lomen : Q. The voter was asked what his name was in each case? — A. Certainly. Q. And the clerk wrote it down in the registration book; is that the idea? — A. Yes, sir. By Mr. O'Neill: Q. But that was not at the request of the voter? — A. Certainly not. Q. On that occasion did not George B. Grigsby, who was a candidate for attorney general, pi'otest for the reason of the fact that there was no book kept for registration? Mr. Lomen: Objected to as not the best evidence. If there was any such protest as that, there should be no record if it. Q. If you recall, Mr. Bowen, I mean when Judge Adams was sent for and he came up? — A. It appears to me there was something of that kind came up, but it has slipped my mind, though. Mr. O'Neill. That is all. Russell W. Bowen. G. A. ADAMS, being duly sworn, testified as follows : By Mr. O'Neill: Q. Judge Adams, what official position do you hold? — A. Clerk of the district court, second division, Territory of Alaska. Q. I will show you this document and ask you, what is that? — A. That is a duplicate register. Q. Duly certified to by you as the clerk of the district court? — A. Wait just a moment ; I haven't finished. I would like to change my answer. This is a certified copy of the duplicate register which was returned to the district court as part of the election returns of the election of November 7, 1916, from the Unalakleet voting precinct. ■ Mr. O'Neill. I now offer this duplicate register in evidence, which was pre- viously marked for identification, and ask that it be marked by the notary " Contestee's Exhibit A." and attached hereto and made a part hereof. Mr. Lomen. Objected to as irrelevant, incompetent, and immaterial. Q. You are an attorney at law, are you not. Judge Adams, and entitled to practice in all of the courts in the Territory of Alaska? — A. Yes, sir. Q. I show you this statute, chapter 24 of the Session Laws of the Territox'y of Alaska for the year 1915, and ask you if that statute is on the official book of statutes of the Session Laws of the Territory of Alaska for the year 1915? Mr. Lomen. No objection. A. Yes, sir. Q. And that statute is now in full force and effect? Mr. Lomen. That is objected to as incompetent, irrelevant, and immaterial, for the reason that the matters in issue herein involve the election of a Dele- gate to Congress and the territorial statutes do not apply ; that the election laws for Delegate to Congress is governed by the statutes of Congress wholly and entirel3^ Mr. O'Neill. The purpose of introducing this testimony is to prove the statute of a foreign jurisdiction, the Congress of the United States necessarily not taking judicial notice of the local laws of the Territory of Alaska. A. It stands as a law of the Territory of Alaska unless repealed or modified by the session of the legislature in 1917, as to any repeal or modification. Mr. Lomen. I move to strike that out as being an answer that is wholly volunteered and passing an opinion by the witness on a question that must be determined by the House of Representatives i'tself and not by the opinion of this witness. Q. At the date you are giving your testimony, to wit, the 25th day of July, 1917, has any copy of the Session Laws of the Territory of Alaska for the session of 1917 arrived at Nome, to your knowledge, any complete copy? — A. There has not. 350 WICKERSHAM VS. SULZER. Q. Have you any knowledge of any acts passed by the territorial legislature for the Territory of Alaska at its last session which altered, amended, or repealed chapter 24 of the Session Laws of 1915? Mr. LoiiEN. Objected to as irrelevant, incompetent, and immaterial. A. I have not. Mr. O'Neil. I now offer in evidence chapter 24 of the Session Laws of the Territory of Alaska for the year 1915, and ask that a copy thereof be made by the notary and marked " Coutestee's Exhibit C," subject to the objection of the contestant, and that the same be attached to this deposition and made a part hereof. Q. I now call your particular attention to chapter 25 of the Session Laws of the TerritoiT of Alaska for the session of 1915. and ask you if that statute was passed by the territorial legislature and is upon the official book of the Session Laws of Alaska for the year 1915? — A. It is. Q. Is that statute now in full force and effect? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial, and calling for a conclusion of the witness upon a matter for the House of Repre- sentatives to pass upon and not for this witness. Mr. O'Neil. The testimony is offered for the same reason as the proof of the statute heretofore offered, to wit, to prove a foreign statute before the House of Representatives, of which statute said House can not take judicial notice. A, Unless modified, amended, or repealed during the session of the legislature of 1917 this act stands as the law of the Territory of Alaska. Q. Have you any knowledge of chapter 25 of the Session Laws of 1915 being altered, amended, or repealed by the Territorial Legislature? Mr. LoMEN. Same objections. . A. None whatever. Mr. O'Neil. I now offer in evidence chapter 25 of the Sessions Laws of the Territory of Alaska for the year 1915 and ask that a copy be made thereof by the notary and marked " Contestee's Exhibit D," subject to the objection of the contestant, and that the same be attached to this deposition and made a part hereof. Q. Calling your attention again to chapter 24 of the Session Laws of 1915, which is an act to define and establish the political status of certain native Indians within the Territory of Alaska, has any Indian or Eskimo made appli- cation to the district court for the establishment of his political status during the time that you have been clerk of said court? Mr. Lomen.*^ Objected to as irrelevant, incompetent, and immaterial, no proper foundation laid, for the reason that the political status of natives can not be established by the Territory of Alaska ; it is beyond their power so to do ; for the further reason the chapter referred to, chapter 24 of the Session Laws of 1915, is entitled "An act to define and establish the political status of cer- tain native Indians within the Territory of Alaska," and has nothing to do with their qualification as voters. Furthermore, that there is more than one subject embraced in said act and not included in the title of said act. For the further reason that the law does not pretend or purport to define citizenship or the political status of anybody but only to furnish evidence whereby the fact of citizenship or political status may be determined as prima facie evidence and not of the fact itself. A. No application at all has been made under this act. Q. And you have been clerk of the court for the second division. Territory of Alaska, continuously since the passage of this act until the present time? — A. Yes, sir. Q. Calling your attention to chapter 25 of the Session Laws of Alaska for the year 1915 and to section 22 of said chapter. I will ask if you, as clerk of the court, did provide any polling place within the second division with a book known as the registration book, or any equivalent book? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial and refers to an act not required by law to govern the election of Delegate to Congress. A. Every voting precinct in the second division was provided with a registra- tion book or, as is termed in the act of Congress of May 7, 1906, " Register of voters." Q. And the book provided for by you. Judge, was provided under the original act of Congress of May 7, 1906, and not in accordance with section 22 of chapter 25 of the Session Laws of Alaska?— A. The act of Congress of May 7, WICKEESHAM VS. SULZER. 351 1906, provided for the election of a Delegate to Congress from Alaska, and con- tained specific provisions as to notice of elections, registers, qualification of judges, and other details of election. The act of Congress of August 24, 1912, in section 4. which is section 412 of the Compiled Laws of Alaska, provided among other things as follows : " That the qualifications of electors, the regulations governing the creation of voting precincts, the appointment and qualifications of election officers, the supervision of elections, the giving of notices thereof, the forms of ballots, the register of votes, the challenging of voters, and the returns and the canvass of the returns of the result of all such elections for members of the legislature shall be the same as those prescribed in the act of Congress entitled 'An act providing for the election of a Delegate to the House of Representatives from the Territory of Alaska,' approved May 7, 1916." Sec- tion 22 of chapter 25 of the act of the Legislature of Alaska, second session, provides for the keeping of a registration book and directs that the clerk of the court shall publish on the first page of such registration book that which pur- ports to be the qualification of voters. The registration book or duplicate register which was provided to election officers was one which was the result of an attempt to hormonize the act of the legislature with that of Congress. Q. Did the registration book provided to every voting precinct within the second division of the Territory of Alaska at the election of November 7, 1916, complv with section 22 of chapter 25 of the Session Laws of Alaska for the year 1915?' Mr. LoMEN. Objected to as immaterial. A. Not literally. That which was directed to be printed on the first page of the book was omitted because the qualifications as set forth in section 22 of the legislative act never were enacted as the qualifications of voters either by the Legislature of the Territory of Alaska or by Congress. The only place in which these purported qualifications appear in the Session Laws of Alaska are found in this section 22, and here it is merely directory to the clerk of the court as to what should be printed on the first page of the register. Q. Were the election ofl^cers of the various precincts of the second division of the Territory of Alaska at said election directed to require each person desiring to vote to sign any registration book as a condition precedent to the casting of his ballot? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial. A. Sections of the law pertaining to elections were printed and furnished to the various election boards. • Q. Do you recall as to whether or not the directions provided for in section 22 of chapter 25 of the Session Laws of 1915 were furnished to the various election boards? — A. I do not recall. Q. Do you know if the voters of any precinct in the second division at such election signed a registration book or other book of like character before they cast their ballots? Mr. LoMEN. Answer that " Yes " or " No." It is only to your knowledge. Do you know? A. I do not. Q. Have you a copy of the instructions given to the election boards at said election? — A. In the oflice of the clerk; yes, sir. Q. I will ask you if this document I now show you is a copy of the instruc- tions handed to the election boards of the various precincts in the second divi- sion. Territory of Alaska, for their guidance during the election of November 7, 1916?— A. It is. Mr. O'Neill. I offer this document in evidence and ask that it be marked " Contestee's Exhibit B." Mr. LoMEN. That is objected to as incompetent, irrelevant, and immaterial, and for the further reason that the instructions called for or submitted to the election boards were not provided for or requied by any act of Congess, and that, so far as the act or acts of the legislature purported to require such instructions, the act, so far as the election of Delegate to Congress is concerned, is wholly void and doesn't control, in view of the fact that Congress itself has legislated in regard to the subject matter, and the acts of Congress and the acts of the Territorial legislature in that respect are inconsistent with each other. Cross-examination by Mr. Lomen : Q. Judge Adams, how long since you were admitted to the bar? — A. In Alaska? 352 WIOKERSHAM VS. SULZEE. Q. No ; generally.— A. I believe in 1896. Q. Have you followed the practice of your profession since that time, gen- erally ? — A. Not continuously nor generally ; no, sir. Q. How many years did you follow the practice of law and how long ago?— A. In Alaska since about the year 1907 up to 1914, since which date I have not en- gaged in practice. Q. Now, as I understand you, you stated on your direct examination that the Territorial acts of the legislature, session of 1915, are upon the statute books, and the law, because not amended or repealed by any act of the legislature. Was there any other qualification in that?^A. It was my meaning that the act, chapter 24, remains the official statute of the Territory of Alaska unless repealed or modified by the session of the legislature of 1917. Q. What about Congress? Mr. O'Neill. That is objected to as incompetent, irrelevant, and immaterial. Mr. LoMEN. It is cross-examination ; it goes to competency. Mr. O'Neill. And not proper cross-examination. A. I was not including within the meaning of my answer to the question just asked, or in my answer given in the direct examination, the question of the validity or legality of any parts or portions of chapter 25. Q. Or chapter 24? — A. Chapter 24 is a different subject. Q. I know, but you testified A. And the same meaning applies in reference to my answers concerning chapter 24. Q. But now, as a matter of fact, if either of these statutes had been repealed, amended, or altered by Congress, that would be quite as effective as though the legislature had done so, would it not, as a matter of law? Mr. O'Neill. Object to the question upon the ground that chapter 24 of the Session LaAVS of 1915 is not in conflict with any act of Congress. A. In my opinion it would be much more so. Q. Now, the legislature has not plenary power with reference to the legisla- tion, but is authorized only to enact such laws as Congress has permitted them by the enabling act to enact. Isn't that true? — A. I so understand it. Q. Now, with reference to the election of Delegate to Congress, has Congress authorized the legislature of the Territory of Alaska to enact any laws govern- ing such elections? In other words, has not Congress itself legislated upon that subject fully ?-iA. There are certain provisions in the enabling act, which is the act of August 24, 1912, governing elections in the Territory of Alaska. Within the limits of these provisions it s presumed that the legslature would enact nothing which would be in conflict. Q. By comparison have you discovered that the provisions of chapter 25 of the Session Laws of 1915 differ from and are in conflict with the act of Congress upon the subject of elections in the Territory of Alaska?— A. Chapter 25 of the Territorial act conflicts in many respects with the provisions of the congressional acts concerning elections in Alaska. Q. And would you say more especially in the matter of the election of Dele- gate to Congress? In other words the act of Congress of May 7, 1906, provided for the election of Delegates without reference to any other elections? — A. It did. Q. And stands as a separate and distinct provision in regard to such elec- tion? — A. It so stands except as it may be somewhat modified by provisions of the enabling act which is the act, of Congress of August 24, 1912. Mr. LoMEN. That is all. Redirect examination by Mr. O'Neill : Q. With respect to chapter 24 of the session laws you distinguish do you not that the right of citizenship and the right of suffrage are two separate and dis- tinct rights? In other words you realize as a lawyer that a person may be a citizen and still not have the right to vote?— A. The rights are altogether different. Recross examination by Mr. Lomen : Q. I will ask if chapter 24 purports to be in its nature a naturalization act and if the Constitution of the United States does not delegate to Congress the sole power to enact laws with reference to naturalization? Mr. O'Neill. Object to that upon the ground that the citizenship or non- citizenship of the natives of the Territory of Alaska .are provided for solely by article 3 of the treaty concerning the cession of the Russian possessions in North America to the United States. WIOKEBSHAM VS. SULZER. 353 A. Chapter 24 I am not as familiar with as chapter 25. Chapter 24 of the act of the legislature, Session Laws of 1915, in the last part of section 1 reads as follows : " Have the fact of his citizenship definitely established by complying with the terms hereafter set forth." This I do not understand to cover or include the right of suffrage. Q. And the fourteenth amendment to the Constitution of the United States, which was passed subsequent to that treaty, wherein it is stated that all per- sons born in the United States and subject to the jurisdiction thereof are citi- zens of the United States. Is that true ? — A. In a very general sense ; yes, sir, Q. And does the election law governing the election of Delegate to Congress- for the Territory of Alaska provide that citizens of the age of 21 years, I think it reads male citizens of the age of 21 years shall have the right of suf- frage? — A. The qualifications of voters, which is the right of suffrage, in Alaska, are contained in section 3 of the act of Congress of May 7, 1906 (sec. 394, Compiled Laws of Alaska), and reads as follows: "All male citizens of the United States, 21 years of age and over, who are actual and bona fide residents of the Territory of Alaska and who have been such residents con- tinuously during the entire year immediately preceding the election and who have been such resident continuously for 30 days next preceding the election in the precinct in which they vote, shall be qualified to vote for the election of the Delegate from Alaska." The qualifications as prescribed in this act have uever been modified by any legislative act except the purported modification contained in section 22 of chapter 25 of the act of the legislature of the Terri- tory of Alaska, session of 1915. Q. And the further provision of chapter 1 of the Session Laws of 1913 grant- ing the elective franchise to women? — ^A. Yes; and this was enacted by the territorial legislature under an act of Congress authorizing — there was a special act authorizing it. Q. Now, then, the sole qualification of a voter, then, is his citizenship, is it not? Or put it age and citizenship? — A. The first mentioned is citizenship. Q. Exactly. Now there are no other qualifications than age and residence besides citizenship, is there? — A. No other qualifications than those contained in section 394 of the Compiled Laws above quoted except as the right to vote was extended to wonien by the Territorial act under authority of a con- gressional act. Q. Now, so far as Eskimos are concerned, if they be citizens of the United States and have the qualifications in regard to residence and age, they would be voters, would they not, granting that they are citizens? — A. I know of no reason why they would not be legally entitled to vote under those conditions. Mr. LoMEN. That is all. Re-redirect examination by Mr. O'Neiix : Q. An Eskimo born within the Territory of Alaska is not necessarily a citi- zen, is he? — A. The status as to citizenship of the Eskimo of Alaska is not well determined by laws of Congress and decisions. There are certain pro- visions in the treaty of cession of the Territory of Alaska from Russia to the United States whereby the inhabitants of the ceded territory are secured in certain rights in two classes, one class being the uncivilized native tribes and the other class embracing all other natives. Q. You understand, do you not, as a lawyer, Judge, that the term " Indian " and "Eskimo" are in legal parlance, synonymous terms? — A. I do not. I un- derstand that for certain purposes the terms have been declared to be synony- mous. Q. With respect to this portion of article 3 of the treaty of cession " The un- civilized tribes will be subject to such laws and regulations as the United States may, from time to time, adopt in regard to aboriginal tribes of that country." You understand, do you not, that provisions with respect to the Indians in the matter of education and sanitary regulations contained in the Revised Statutes of the United States are also applicable to the Eskimo under said article of the treaty? — A. Under the liquor law of the^ Territory of Alaska, as enacted by Congress, " Indian " and " Eskimo " are declared to be synony- mous. Under some decisions relative to certain rights of inhabitants of Alaska " Indian " and " Eskimo " have been declared to be synonymous terras in other respects. Mr. O'Neill. That is all. 132S9— IT 23 354 WIOKERSHAM VS. SULZER. Re-reeross-examination by Mr. Lomen : Q. Has there not also been decisions to the effect that the Indian and the Eskimo are a different race of people and that the term " Indian " and "Eskimo" is not at all convertible? Mr. O'Neill. Do you mean legal decisions, Judge? Mr. LoMEN. Yes ; legal decisions. A. From racial considerations I have always understood the terms are not synonymous. Q. Yes. Now, having reference to the date of the treaty of cession and the adoption of the fourteenth amendment to the Constitution, which is first in order of time, the treaty or the fourteenth amendment, as adopted? — A. The treaty was in 1867 and the other 1869. The treaty of cession was first in order of time. Q. And if the Eskimo comes within the purview of the fourteenth amendment to the Constitution, then they have been declared to be citizens of the United States, have they not, if born in Alaska? — A. At the present moment I can cite no authority to this effect other than general application of the words con- tained in the fourteenth amendment. Q. Now. as far as you know, an Eskimo born in Alaska and subject to the jurisdiction of the United States is a citizen of the United States, is he not ; isn't that the exact language when it says "All persons " ? Mr. O'Neill. What do you mean now? Are you asking him a question of fact or a question of his construction of the statute? Mr. LoMEN. He is an expert witness, a lawyer. Mr. O'Neill. That is what I am getting at. A. The answer to this question involves a construction of the fourteenth amendment which has been cited Mr. O'Neill. I want to interpose an objection to that question on the ground it can not be ascertained from the question as to whether or not a question of fact, to wit, as to whether or not an Eskimo is a citizen of the United States, or a question of law, as to whether or no an Eskimo under the fourteenth amendment of the Constitution of the United States is a citizen of the United States as a matter of law is involved. A. (continuing). In connection with the rights secured to the inhabitants of the ceded territory as set forth in article 3 of the treaty of cession. At the present time I am not in a position to state whether this exact point has been construed by the proper court. Mr. Lomen. I will grant you that it has not, but is an original proposition in taking advantage of the Constitution itself and your knowledge of whether the Eskimo is a person or not, and the further fact as to whether he is subject to the jurisdiction of the United States would lead you to believe that he was a citizen of the United States and if such, being over the age of 21 years, and liaving the residence required by the election laws, he would not be a voter. A. An opinion such as called for in the question would not be of much value •unless formed under considerable investigation, but it would seem that the words employed in the fourteenth amendment are of such breadth as to cover or include Eskimos in Alaska. Mr. LoMEN. That is all. By Mr. O'Neill: Q. How long have you been in Alaska? — A. Practically 20 years. Q. Do you consider there are any uncivilized people of the Eskimo race in Alaska? — A. The term " uncivilized " is one to which many meanings are ascribed. Q. Within the language of article 3 of the treaty of cession, do you considei. that there are any uncivilized people of the Eskimo race in Alaska? Mr. Lomen. You may add this : " Within the " territory now occupied and for several years have been occupied by the white man." Mr. O'Neill. No objection to that. A. The provisions 'of article 3 speak of the uncivilized tribes in Alaska, ii. my residence in this portion of Alaska for IS years I have never had knowledge of the existence of tribal relations among the Eskimo. Q. Would you call them civilized or uncivilized — that is the meat of th^ question? — A. The rights insured under article 3 are to uncivilized tribes. I\ there are no tribes, I don't understand that this has application to an individual Eskimo as to whether or not he may be civilized or uncivilized. WICKEKSHAM VS. SULZEE. 355 Q. You don't seem to catch what I am trying to get at. Taking the entlix Eskimo race as a tribe for the purpose of this question ; do vou consider them civilized or uncivilized; and if civilized, what proportion thereof do you con- sider civilized?— A. Confining my answer to the Eskimo residents of the Norton Sound and adjacent Bering Sea portions of the Seward Peninsula, I regard the Eskimos as civilized within certain degrees. Mr. O'Neill. That is all. G. A. Adams. ROBERT JAMES, being duly sworn, testified as follows : By Mr. O'Neill: Q. Mr. James, what ofiicial position did you hold on the 7th day of November, 1916, in the second division, Territory of Alaska? — A. In relation to the elec- tion? Q. Yes. — A. I was on the election board, a member of the election board. Q. What precinct? — A. I think it is the third ward, is it not? Q. Yes, it is the third ward. As a member of the election board did you or did the board have a registration book or other similar book which the voters signed prior to receiving or casting thir ballot? Mr. LoMEN. That is objected to as being irrelevant, incompetent, and imma- terial, no law or statute providing for any registration of voters so far the election of Delegate to Congress is concerned. A. In other words, what you mean is. Did they sign themselves before regis- tration ? Q. Yes. — A. No ; we had nothing of that kind. Q. Was any book signed at their request — that is, did the voters request you to sign any registration book or what purported to be a registration book for them? — A. No, sir. Mr. O'Neill. That is all. Cross-examination by Mr. Lomen : Q. As a matter of fact, the names of all voters were registered by the clerks 3f election? — A. They were. Q. In the presence of the voter?— A. Yes, sir. I can give you the procedure in which our ward was conducted, if you wish it. Mr. O'Neill. I would like to have you do it, Mr. James. A. There were two ballot clerks. As the voters came in they went up and asked for a ballot, and the ballot clerk would ask their names and' would register their name, then they would pass the ballot to the voter, the voter would take the ballot, and after he marked it he would come up and give it to the board — the inspectors, you know — who received it, and each ballot was numbered. Q. Duplicate numbers? — A. Yes, sir; duplicate numbers. That number was perforated and was torn oft from the ballot, and as the receiver would take the ballot he would call the number, say, No. 172, for illustration, and the name, and the ballot clerk would respond to that when the name was called that he had re- ceived that ballot. Then the ballot was deposited in the box, and the name of the voter was given to the registration clerk. Q. For instance, " Mr. Hugh O'Neill, No. 172, voted." The name and the num- ber would be compared? — A. Yes; the name and the number were compared every time on every ballot that was placed in the box. The name was regis- tered by the clerk provided for tallying the ballots and receiving the names and registering. Q. Were there two sets of names or one kept? — A. There were two election ^ lerks, and each one wrote the name down. Q. Did they each write the name of the voter at the time he received the ballot, :r did one write the name at the time he received the ballot and one write the lame at the time the ballot was voted? — A. The clerk who delivered the ballot to "he voter he would write the name, and then when the voter M'ould present his oallot the clerks of the election board — not the ballot clerk but the registration clerk — when the name was called they would register the name, set the number down and all numbers compared to this number that was given by the ballot clerk. Q. Now, none of these names were written down at the request of the voters? — A. No; I never heard of that. We conducted our election just as we were instructed to by the clerk of the court. The clerk of the court came down there; it seems they had trouble in one of the wards up here, and they sent for him. He went up there, and then he came along down to our ward ; he came 356 WICKEESHAM VS. SULZER. down to see how the election was being conducted, and he said it was satisfac- tory and right. We had the instructions to go by, and we tliought we were following the instructions. Mr. LoMEN. That is all. RoBT. James. W. R. HAYES, being duly sworn, testified as follows : By Mr. O'Neill: Q. Mr. Hayes, what official position did you hold in the town of Nome, Alaska, on the 7th day of November, 1916? — A. I was one of the judges of the election board for the second precinct in the city of Nome. Q. Did you have any book known as the registration book or any similar book in which voters signed their name prior to receiving their ballots? Mr. LoMEN. That is objected to as irrelevant, incompetent, and immaterial, and for the reason that there is no law or statute requiring such registration book, so far as the election of Delegate to Congress is concerned, other than a purported act of the Legislature of the Territory of Alaska, which is incon- sistent with the election laws provided for by Congress. A. Not that I recollect of. The only thing we had was the instructions as to the qualifications of a voter. Q. Did any voter register his name in any book at said election prior to the receiving of his ballot or at any time? Mr. LoMEN. Same objection. A. No ; he did not. Mr. O'Neill. That is all. Mr. Lomen. No cross. W. R. Hays. E. E. ADAMS, being duly sworn, testified as follows : By Mr. O'Neill: Q. Mr. Adams, what official position did you hold in the second division of the Territory of Alaska on the Tth day of November, 1916? — A. One of the judges of election for precinct No. 1. Q. Did you or did the election board of that precinct on the Tth day of November, 1916, have a book known as the registration book or any book wherein the voters signed their name either prior to voting or subsequent to voting ? Mr. Lomen. Objected to as irrelevant, incompetent, and immaterial, and for the reason that there is no law or statute requiring such registration book or such registration except an act of the Legislature of the Territory of Alaska which is inconsistent with the act of Congress regulating the election of Dele- gates to Congress and which alone govern such elections. A. We did not. Mr. O'Neill. That is all. Mr. Lomen. No cross. E. E. Adams. LOUIS ERICKSON, being duly sworn, testified as follows : By Mr. O'Neill: Q. How long have you resided in the Territory of Alaska, Mr. Erickson? — A. Eighteen years. Q. Do you know the location of the village called Unalakleet? — A. Yes, sir. Q. How frequently have you been in that village in the last five years? — A. Well,, about five days a month ; something like that. Q. What has been your business? — A. Mail carrier. Q. And as such mail carrier you passed through the village and stopped there overnight the number of times indicated by you? — A. Yes, sir. Q. During those instances did you become acquainted with the population of the village? — A. Yes, sir. Q. You have observed them from time to time? — A. Yes, sir. Q. You know their habits and general characteristics, their habits, etc.? — A. Well, yes ; to a certain extent. Q. I show you this document, marked " Contestee's Exhibit A," and ask you if you recognize any of the names on that document purporting to be a list of the voters of the Unalakleet voting precinct ? — A. Yes ; I recognize the most of the names. WTCKEESHAM VS. SULZEE. 357 Q. You know nearly all of the people in that village?— A. Yes ; prettj- much so. Q. Approximately how many natives do you recognize upon this list? Mr. LoMEN. Ob.lected to as irrelevant, incompetent, and immaterial. Answer. Seventeen. Q. You recognize 17? — A. Yes. sir. Q. How far does your mail route run? — A. From Chinik to Unalakleet. That is, once in awhile we switched around and I came right through from Una- lakleet to Nome. Q. You are familiar with the natives from Nome to St. Michael? — A. Yes, sir; pretty much so. Q. How do the natives average, from the standpoint of intelligence, in the different villages from Nome to St. Michael? Are they pretty nearly all upon the same average or are there some villages where the natives are unusually intelligent? — A. Well, they all know, the most of them, the coming genera- tion of young people, they nearly all have good schooling. They go to school ; that is, since the mission came into existence, but the bigger portion of the natives at Unalakleet are brighter on account of ha^^ng better teachers there than in other parts — that is between Chinik and Unalakleet or St. Michael. Q. How long have the missionaries been teaching the natives in Unalakleet to your knowledge? — A. Ever since I came to Alaska and before that; I guess 20, years. I could not say for sure. I know they have been there for 18 years. Q. At Unalakleet? — A. Yes, 'sir; ever since I came to the country, and I have been here 18 years, and I believe the mission was here before I came into Nome. Q. What would you say with respect to whether or no the natives of Una- lakleet are sufficiently intelligent to exercise the obligations of suffrage? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial, and no proper foundation laid, and calling for the opinion of the witness not shown to be qualified. A. I don't know as I can answer that question. They can read and write. I really haven't got an opinion about it. Q. Did you ever hear the natives discussing any political subject? Mr. LoMEN. Objected to as immaterial. A. Yes ; I do know one time ; just once. Mr. LoMEN. When and where was this? A. In Unalakleet. Q. From what you know of the natives of Unalakleet would you say that they were sufficiently educated to pass upon the merits or demerits of a political proposition? Mr. LoMEN. Objected to for the same reason as above stated. A. Why, I have never talked with them. I have been over to the school and seen them in school and seen them write and read. As to their ability other- wise or whether they know anything about what the law requires of them, I don't know ; I could not say. Q. You have seen them very often for the last five years? — A. For the last eight years. Q. Now, you have discussed other matters with them from time to time, have you not? — A. No, sir. Q. What method of livelihood is adopted by them? — A. Well, some of them \vill work for white people if they have a chance, and fishing and hunting is how they make a living at most. Q. Have they materially altered their mode of livelihood since you first knew them ? — A. To a certain extent they have ; yes, sir. Q. In what respect? — A. Well they have better houses, and some of them have better clothing and others haven't. When they were living out in the country these natives naturally saved their furs and used it for clothing, which is neces- sary in the winter. They sell their furs and buy white men's clothes. They try to live like a white man, but they haven't got enough money to do it. Some of them are worse off now in a way than they were while they had their furs and lived out in the countiT entirely. Q. Other than the fact that some of them wear better clothes and live in better houses, have they materially changed their method of livelihood? — A. The sanitary conditions are far better ; yes, sir. Q. Do you I'ecall in what other respect they have changed their method of livelihood? — A. Well, it is hard to answer a question of that kind for this 358 WICKEESHAM VS. SULZER. reason : Some of them are improving and otliers are losing their ambition for hunting and fisliing, trying to live like the white men, and they can not do it because they haven't got the means. They can not get the work that is required for them to live that way. Q. And as the result of that they are living practically in the same condition as when first you saw them? — A. Well, they have improved their methods in building houses, and they are cleaner, and some of them are .a good deal more industrious than others. Q. They all live together in families and in villages, do they not, as they did prior to the advent of the white man? — A. No; they are scattered around a good deal more now than they were then. Before, when I first came down the coast, Unalakleet was the main village. Now they have moved to Shackloteck, and they have got a school there also, and there used to be a place called Bonanza farther up, between Shackloteck and Isaacs Point. The most of them have moved over to the Koyuk and the rest of them have gone to the mission at Koyataluk. Q. Have any of the natives in Unalakleet left the place of their original abode and taken up homes among the white population of Nome or any orner place, to your knowledge? — A. Yes, sir. Q. How many of them? — A. Well, there are two or three families who are con- ducting a road house along the line. There is one at Foot Hill, one at Bonanza, and one at Koyataluk, and one at Isaacs Point — that is four. Q. You have stopped at those road houses frequently? — A. All the time. Q. Did yoia, on any occasion of your stopping at those road houses, near any discussion between the Eskimo of any public questions? Mr. LoMEN. Objected to as irrelevant and immaterial. A. No ; I haven't. Q. How many of the Eskimos upon this list that I show you (Exhibit A) do you think would be competent to vote at an election such as was held last November ? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial, and no proper foundation laid, and calling for the opinion of the witness upon a matter in Avhich he has not shown himself to be qualified. A. I don't know. Q. Do you know of anyone on that list yoiT would consider competent to vote? Mr. LoMEN. Same objections. A. No ; I could not say. because I have never talked with them on that sub- ject at all. There are several of them here who are intelligent and read and write as well as any white man ; but, as to whether they are qualified to vote or not, I don't know. Q. You wouldn't swear that anyone on that list was qualified to vote, to your knowledge? — A. No, sir. Mr. O'Neill. That is all. Cross-examination by Mr. Lomen : Q. You said you would not say that you could name anyone who was quali- fied. Can you name anyone who is not qualified to vote? — A. I don't know as I can answer that question now. I don't know anything about the older people. Mr. Lomen. You should not testify to things you don't know about. — A. Well, I don't know anything about it, then. Q. Speaking of the qualifications, you know a great many white people here not as well qualified as the average Eskimo down at Unalakleet, do you not? — A. I know some. Q. I mean of those who are voters? — A. Yes, sir. Q. And is there any appreciable difference in the mode of living between the Eskimo down at Unalakleet and the whites living at Unalakleet outside of the mission people? — A. Those that are married to Eskimos are very much the same. Q. Are a great many of the Eskimos who are upon that list married to white men? — A. There is Mrs. Bradley, Mrs. Erick Johnson, Mrs. Powers, Mrs. Bason; I guess that is all. Q. Now, have you discovered that any of the Eskimos down at Unalakleet maintain what is generally known as tribal relations? — A. No; not now any more. Mr. Lomen. That Is all. Redirect examination by Mr. O'Neill : Q. Mr. Erickson, do you want to put yourself on record as saying that the average Eskimo that you meet on the street is entitled to vote? — A. No, sir. WICKEESHAM VS. SULZEK. 359 Q. Now, do you want to put yourself on record as saying that 10 per cent of the Eskimos in Unalakleet are of sufficient intelligence to vote? — A. Well, I don't know ; no, 1 would not. I will answer the question this way, that they read and write, that is all I know about them. Q. You have been in Alaska for some 18 years? — A. Yes, sir. Q. Now. all of us in Alaska know more or less about the Eskimo and we know his habits and his manner of livelihood, and we know the things that appeal to him. Now. would you say. knowing the Eskimo casually as you have for that length of time, that as many as 10 per cent of them in Unalakleet were sufficiently qualified to vote? — A. Well, I don't iinderstand. I will have to ask a question. If a man gets to read and write, is he qualified to vote? Q. I will ask you this question : That knowing the Eskimos in Unalakleet and knowing the Eskimos generally as you have for 18 years, do you think that 10 per cent of the Eskimos in Unalakleet could intelligently vote upon any political question? Mr. LoMEN. Objected to as calling for the opinion of the witness and as irrelevant, incompetent, and immaterial and no proper foundation laid. A. I think that some of them are, yes. sir; I think that some of them are qualified. Q. Well, what proportion of the Eskimos in Unalakleet do you think are qualified to vote? Mr. LoMEN. Same objections. A. I don't know all of them, but I know that some of them are. Q. Well, A^hat proportion of them that you know do you think qualified to vote? Mr. Lome??. Same objections. A. Well, if an Eskimo is a citizen — there is Maurino Johnson is one of them ; there is Englestadt, too, he is a half-breed ; there is Stefanssen, he is a half- breed ; and there is Michael Ivanoff, he is the school-teacher, he is also a half- breed ; there is Eben Q. Is he a half-breed? — A. No. sir. There is David, he is also intelligent. Q. Is he a half-breed? — A. No, sir. And there is — I can not think of any more. Q. Do you know Eben's last name?— A. No; I don't know any of their last names. Q. You don't know David's last name? — A. No, sir. Q. And you still think he is entitled to vote? — A. Yes, sir; I think so. Q. Approximately how many full-blooded Eskimos were in Unalakleet when you were there last winter ? — A. Oh, about 40 or 50, I guess ; probably more than that. Q. Now, for the last five or six years there has been practically the same families living there, hasn't there? — A. No; there has been as high as 200 living there, but they have moved away now to different places. Q. These 40 or 50, they have been there for the last five or six years, have they not? — A. Yes, sir. Q. Out of these 40 or 50, judging from what you know of them that you recall right now, do you think would have a right to vote — the full-blooded Eski- mos ? — Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial, and I object for the further reason that the number caller for now is far in excess of the number shown whose names appear upon the register, and it isn't shown that the number who are not entitled to vote in the opinion of witness did vote in fact. A. Oh, about five or six of them that I know of; that is all, about, that I know. Q. Do you know about how many Eskimos there are in Nome living over on the Sandspit? Mr. LoMEN. Objected to as immaterial. A. I don't. Q. Have you any idea? — A. No, sir. Q. How many Eskimos do you know in Nome? Mr. LoMEN. Objected to as immaterial. A. I don't know any. Q. Don't you know the names of any of the Eskimos in Nome? — A. Yes, sir, one ; that is a fellow by the name of Joe, he was herding deer for Lomen & Co. Q. And that is the only Eskimo you know in Nome? — A. That I know well enough to speak to. * 360 WICKERSHAM VS. SULZEB. Q. How many do you know by sight? — A. Pretty near all of them. Q. How many have you seen in Nome? Mr. LoMEN. That is Objected to as immaterial. Q. How many have you seen in Nome? — A. You mean that are living here now? Q. Yes, sir ; that are living here now? — A. About three of them. Q. There are just three that you can recall? — A. Yes, sir; that I can recall. Q. Well, you have been down town evenings in Nome frequently and have seen in the neighborhood of 15 or 20 Eskimos congregated ?— A. No ; I have not. Q. Were you here the day the excursionists were here? — A. Yes, sir. Q. Were you in Barracks Square when the Eskimos held that exhibition? — A, No ; I was not. Q. Did you see any of the athletic exercises pulled off by the Eskimos? — ^A. I just saw a glance of one out in tlie kayak as I passed ; yes, sir ; that is all ; I didn't see any of the exercises. Q. What is the largest number of Eskimos you have seen together within the last two years in Nome, that you recall, approximately? — A. Fifteen or twenty, I guess, the Fourth of July ; that is the largest I can recollect. Q. Have you observed their manner of livelihood in Nome? — A. No, sir. Q. You don't know how they live on the Sandspit? — A. No, sir. Q. Have you ever been over there? — A. No, sir. Q. Never in your life? — A. Yes; I have been. Q. How frequently? — A. Not this year. Mr. LoMEN. That is a leading question. Q. Now, will you say those 15 or 20 — what is your best jucu ment, from what knowledge you have, of their method of livelihood in Nome as to their qualifica- tins to become citizens? Mr. LoMEN. Objected to as wholly immaterial. A. I don't know nothing about the Eskimos in Nome in so far as their liveli- hood is concerned. Mr. O'Neill. That is all. By Mr. Lomen : Q. You don't know who voted at the last election down there at (Jnalakleet? — A. No ; I don't know ; I was here in Nome. Louis Eeikson. FRED LARSON, a witness produced on behalf of contestee, being duly sworn, testified as follows: By Mr. O'Neill: Q. How long have you been in the second division, Mr. Larson? — A. I have been here about 23 years. Q. You have considerable knowledge of the Eskimos residing in the second division, have you not? — A. Yes, sir; I have. Q. And you have observed them considerable during that 23 years of your residence? — A. Nearly always; yes, sir. Q. Has the Eskimo changed his manner of livelihood materially from the time that you first observed them until the present date? — A. Some; to an extent. Q. To what extent? — A. They have been bettering their condition in living, keeping a little cleaner, and getting a little better houses ; and some of them are trying to live like the white man's style to a certain extent. Q. Is the proportion that are living after the white man's style large or small? — A. I don't know what you mean. All there are in Alaska? Q. No ; I mean in the second division ; those in the second division. — A. The most of them are living in the native style. Q. In fact, very few of them are living the habits of civilized life? — A. Yes, sir. Q. Now, I show you this duplicate register, marked " Exhibit A," and ask you if you recognize any of the names upon that? — A. Yes, sir; I do recognize seevral of them. There are lots of those that are white people. No ; I don't recognize them by the name of the white person. Q. But you are thoroughly familiar with the Eskimo population at Una- lakleet ? — A. Yes, sir ; they all know me and I think I know all them. Q. What percentage of the Eskimo population of Uualakleet would you con- sider of sufficient intelligence to exercise the obligations of suffrage or of voting? WICKEBSHAM VS. SULZEE. 361 Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial and no proper foundation laid and calling for tlie opinion of ttie witness upon a matter in which he has not shown himself to be competent. A. Well, I don't know a full-blooded native at all that I would put my opinion on as civilized enough for to vote. There might be. As far as my opinion, I don't meet anyone yet. Mr. O'Neill. No ; and I agree with you. Q. The natives of Unalakleet are practically living in the same state as the natives of Nome, are they not? — A. Well, some, and some are living better; the conditions are better down there. Q. Is that by reason of the fact they are closer to their hunting grounds and spend more time in their hunting and fishing industry? — A. Well, yes; they have more industry and better schools ; the mission is around there and they are more away from the white people — they are away from the city. Mr. LoMEN. In other words, they are unspoiled by the white people? — A. Yes, sir ; if you take it that way, maybe. Q. What buHiness is pursued by the majority of the natives of Unalakleet? Mr. LoMEN. Objected to as immaterial. Q. In other words, how do they earn their livelihood? — ^A. Oh, by fishing, some by building boats and freighting, some of them ; some of them work, maybe, for white people for certain times. Q. You have been a trader? — A. Yes, sir. Q. Have you ever heard a discussion among the natives upon the merits of any political proposition? Mr. LoMEN. Objected to as immaterial and incompetent. A. I never have. Q. As a trader, you have had a great deal of experience with the natives? — A. Yes ; I have had more or less. Q. And do you think that they are generally qualified to pass intelligently upon the merits of any political proposition? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial, no proper foundation laid, the witness has not shown himself to be competent and calling for his opinion. A. Not to my knowledge ; I could not state. Mr. O'Neill. That is all. Cross-examination by Mr. Lomen : Q. Your wife is a native woman, an Eskimo, is she not? — A. Yes, sir. Q. How often have you been in Unalakleet during the last five years? — A. In the last five years. I don't believe I have been there more than twice since 1906 ; I think I have been there only twice. The second time I didn't quite reach Unalakleet. Q. And you have been there only once in 10 years? — A. Yes, sir. Q. How long did you stop when you were there? — A. I stayed that time a little over two weeks, pretty near three weeks. Q, What time of the year was it?— A. I arrived there New Year's Day. Q. It was in midwinter, then? — A. Yes, sir. Q. And did you visit all the cabins? — A. I visited most of them; yes, sir. They came and invited me many places. Q. Do you know anything about who voted at Unalakleet? — A. Not a thing. Q. Do you know whether the Eskimo of Unalakleet belong to any tribe ; and if so, what tribe do they belong to? — A. At Unalakleet there are some belong to three tribes ; there are Eskimos of three tribes there. Q. Now, what are the three tribes?— A. There is one tribe belongs to Kavara- mut. Q. They are from up around Mary's Igloo? — A. Yes, sir. And the others belong to the Selevickmeet and the Unaleet. Q. And where are the Selevick from; where is the home of their tribe? — A. At Selewick. Q. Where is that? — A. It is between Candle and Kotzebue. Q. And where was the third you mentioned, the Unaleets ; where is their home? — A. They are around Unalakleet, between Unalakleet, St. Michael, and the mouth of the Yukon ; they are scattered between those points. Q. Have those natives who live at Unalakleet severed their relations from the Mary's Igloo tribe and those from the mouth of the Yukon and St. Michael ; have they severed their relations with those other people? — A. You mean if they have been mixed up? 362 WICKERSHAM VS. SULZER. Q. They are not mixed up any more, I believe?— A. Yes ; they are. Q. You mean in blood, but I mean, do they still keep up their relations be- tween the two places; have they got any chief? — ^A. No, sir. Q. They never did have, did they? — A. In olden times they had some they called chiefs. Q. A medicine man ? — A.. Well, there were doctors and medicine men ; they call the doctors medicine men. The chief is a person who is well ofC and has influence more or less over the natives. Q. Because of his wealth and ability? — A. Yes, sir; his ability. Q. Not because they elected him, but because he simply A. In one way, and then there is some ability too. Q. On the part of the man who is the leader? — ^A. Yes, sir. Q. He is a sort of leader among them? — ^A. Yes, sir. Q. They look up to him? — A. Yes, sir. Q. But have they any laws? — A. In the early days they had some sort of law of their own. Q. How long ago?— A. In 1899 and 1900. Q. Are they living under any laws now that you know of except the laws of the United States? — A. You mean down that way? Q. Down at Unalakleet ; yes, sir. — A. No ; I don't believe so. Q. Are they living under the leadership of any chief at Unalakleet? — A. I don't believe so. Q. And they live pretty much like the white people, don't they? — A. Tliey try to. Q. And do they succeed reasonably well in living like white people? — A. Yes; they do. Q. Eat the same kind of food largely? — A. Yes. sir. Q. Have the same kind of furniture? — A. Some of them do. Q. And the same kind of clothing? — A. Yes, sir. Q. And they read and write, most of them? — ^A. The yoiinger people do; they are going to school and getting an education, and they learn pretty fast. Q. They are a quite intelligent race of people? — A. They are. Q. Good imitators? — A. Yes; they are. Q. And they are peaceable? — A. Yes; they are. Mr. LoMEN. That is all. Redirect examination by Mr. O'Neill : Q. The older people can not read or write, can they; that is, generally? — A. No, sir. Q. And what language do they use in their conversation, English or Es- kimo? — A. Most of them use, between themselves, the Tiative language. Q. Don't even the younger people, Avhen they go home, use the native lan- guage generally? — A. The families, you mean? Q. Yes, sir. — A. Most of them do. Mr. O'Neill. That is all. Recross-examination by Mr. Lomen : Q. Do most of the Eskimos at Unalakleet speak English sufliciently to get along with the white men? — A. Yes. You meaivmost of them? Q. Yes; most of them? — A. Yes; they get along. Q. In our language, I mean? — A. Yes, sir. Mr. LoMEN. That is all. Feedeeik Laesen. FRANK MARTIN, being duly sworn, testified as follows : By Mr. O'Neill: Q. How long have you been in Alaska? — A. About 18 or 19 years. Q. I will show you this document, " Contestee's Exhibit A," and ask you if you recognize any of the names on that? — A. I will tell you, when I was asked about this notice, you know, I was under the impression it was about the natives of Nome, and later on this was given to me — a copy of this, you know. Now, I haven't been to Unalakleet. I made a trip there and was there about five days; that was in 1899, on the steamer Albion. I don't believe my testi- mony would be of any use to you regai'ding the natives of Unalakleet. There might be a couple of them I might be able to recall. I know Stefanssen by his coming up here every summer, and half a dozen more. WICKERSHAM VS. SULZER. 363 Q. You are not very familiar witli these Eskimos upon this list marked Exhibit A? — A. No; I am not. Q. Are you familiar with the Eskimos around Nome? — A. I am. Q. How many Eskimos are in Nome now, apiDroximately, to the best of your knowledge?— A. Well, probably 300 or 250. Q. You have observed the Eskimos for the last 17 or 18 years around Nome and vicinity ? — A. Yes ; a little too much. Q. Have you noticed any appreciable change in their method of living from the time that you first observed them, as a general rule, until the present time? Mr. LoMEN. That is objected to as irrelevant, incompetent, and immaterial and no proper foundation laid, and for the further reason that the witness is not one of the witnesses named in the notice of the taking of these depositions. A. Well, there are a few — there are exceptions — there are probably half a dozen that went into a little business, like, say, like building a schooner, and went in trading, and some of them started to work for some white folks, and that is about all the change that I have seen. Q. Out of those 2.50 natives that you know in Nome how many would you think would be sulhciently qualified to exercise the elective franchise? Mr. LoMEN. Objected to as irrelevant, incompetent, and immaterial,- no proper foundation laid, and calls for the opinion of a witness not shown to be competent, and for the further reason that the witness is not named in the notice. A. None of them ; not one. You can take the best educated natives in Nome, and I will bring them right here and talk about a certain subject outside of every-day things, like buying a piece of ivory or selling this or selling that, they don't know a thing about it. I will take any one of them into this office, and they could not answer one question. I have spoken to them about different things, and they would say, " What is that?" " What does that mean?" Ask a native the difference between a Republican and a Democrat. Can he answer? No. He doesn't know the difference. He don't know about anything unless he is posted by some one. Q. Have you ever found one native that could intelligently discuss any political proposition ? Mr. LoMEN. Same objections. A. No, n — o, no ! Mr. O'Neill. I think that is all. Cross-examination by Mr. Lomen : Q. Mr. Martin, what you have testified to has reference to the natives in and about Nome only? — A. Sure. Q. The natives of Nome have not been in the habit of voting, have they, to your knowledge? — A. I don't think so; no, not that I know of. Q. You don't know of any natives who have voted? — A. I do not. Q. You don't know whether any natives voted at Unalakleet or not ? — A. No ; I don't know. (Whereupon Mr. Martin, seeing a native passing the door, brought him in.) Mr. Maktin. Now, here is a native who is considered an exceptionally intelli- gent native. He makes his own living, fishes, and is an industrious native. Now, I will prove what I have just testified to. This native talks good English and reads and writes. Mr. Martin. What is the difterence between a Democrat and a Republican? Eskimo. I don't know. Mr. Martin. Do you know who the President of the United States is? Eskimo. I don't know. Mr. LoMEN. Do you know who the governor of Alaska is? Eskimo. I don't know ; I no savey. Frank Martin. 364 WICKERSHAM VS. SULZER. Contestee's Exhibit A. D. B. Chase. Notary Public. Duplicate register of fjeneral election, November 7, 1916, for Delegate, memhers of the legislature, and for other purposes, Unalakleet voting precinct, St. Michael recording district, second division, Territory of Alaska. Duplicate register. No. Names. Thomas A. Power E.G. Bradley T. Englestadt August Anderson Mrs. T. A. Power J. Schofleld C. Steinhauser Edwin Englestadt . . . Frank Bason Maurino E. Johnson.. Gus Murray Mrs. Eric Johnson Elmer E. Van Ness . . Samuel Anarauk Mrs. E. B. Van Ness. Mrs. S. Anarauk O. Rock Mrs. O. Rock Aaron Pineok Harry Luxi Charles Atiman Miles Yonongan Chal- lenged. Voted or re- jected. No. Names. Chas. E. Traeger Mrs. F. Bason George Krotik ,. Mrs. Eva Rock Mrs. E. Bradley Mrs. Geo. Kootak Etaysuk Analunruk Agnes Yantuk Mrs. Wilson Ginongun . Mrs. G. Luxi Mrs. Agnes Lahulook . . Simon Lugonock Frank Nashowrak Dick Atemun Shatter Losadik Mrs. E. Losadik Mrs. E. Lusak Joseph Rutchutuk Carrie Pernipsook Mrs. PauUne Dick Mrs. Helga Rutchutuk. Wilson Gonongun Chal- lenged. Voted or re- jected. Teeeitort of Alaska, Second Division, ss: We, the undersigned, certify the foregoing register of names, together with the data relative thereto, required by law, to be a true and correct record of all persons voting or applying to vote at said election and precinct ; that the polls were kept open for the reception of votes from 8 a. m. to 7 p. m., and that said register was kept and executed in duplicate. Given under our hand the date above written. Thomas A. Powee, E. O. Beadley, Maurice A. Johnson, Judges of Election. United States of America, District of Alaska, Second Division, ss: I, G. A. Adams, clerk of the district court for the district of Alaska, second division, do hereby certify that I have compared the foregoing copy with the original duplicate register of general election held November 7, 1916, Unalakleet voting precinct, St. Michael recording district, second divson, Terrtory of Alaska, now on file and of record in my office at Nome, in the district of Alaska, and the same is a true and perfect transcript of said original and of the whole thereof. Witness my hand and the seal of said court this 25th day of July, A. D. 1917. [seal.] G. a. Adams, Clerk. By W. O. McGuiee, Deputy. Contestee's Exhibit B. D. B. Chace, Notary Public. instructions. 1. The judges constitute election board and have supervision and charge of election. It is their duty to provide suitable polling place and a ballot box, pass upon qualifications of voters, receive and deposit ballots in the box, and canvass and make returns. 2. Each judge must take oath before officiating. Oath may be taken before a notary or commissioner, or one of the judges may swear in the others and then he in turn be sworn in by one of them. WICKERSHAM VS. SULZER. 365 3. Either of the judges may administer oath to a challenged voter. The judges have equal authority, and in case of disagreement, decision of majority governs. 4. Two of the judges (except in incorporated towns) act as clerks. The two clerks must not be of same politics. The clerks keep the duplicate registers, entering the names of voters as they receive official ballots. 5. On morning of election, if a judge or judges fail to appear or qualify, the voters present, by majority viva voce vote, elect others. Persons thus selected shall take oath before serving. 6. Judges are required to keep polls open from 8 a. m. to 7 p. m. 7. Official ballot must be used. A person desiring to vote applies to judges for ballot. A ballot, with one stub removed, is given when voter retires to mark same. After marking, the ballot is so folded by voter as to conceal vote and to leave the remaining stiib so projecting that same may be readily removed by the judges. Voter then hands ballot to one of judges ; such judge receiving the ballot, if no challenge is made, after checking remaining stub with the one previously removed, removes the second stub and deposits same in the box ; the clerks make appropriate entry in column of register headed ." Voted, etc." A ballot placed in box is not to be removed until polls close. 8. If challenge offered, judges furnish voter with form of affidavit, and if he fills out, signs, and swears to same, judges must accept the ballot. Clerks enter name on registers with notation of " Challenged " and " Voted " or " Refused " and reason of refusal. Blank space is left on last page of register in which to rewrite name of person whose vote is rejected, giving it the same number it bears in the register, together with reason of rejection. 9. In event of no official ballots being received by the election board, voters may write or print their ballots, judges making a certificate, as part of returns, showing facts preventing use of official ballots. .10. A judge, a watcher, or any qualified voter has right to challenge. 11. A voter who uiars a ballot may receive a second, and. if necessary, a third, but no more. The marred ballots to be taken and preserA^ed by the judges. 12. The legislative act provides that there shall be booths or screens wherein voter may mark ballot. Also that if a voter is unable to mark ballot, that judges shall assist; and in case of so assisting, to certify on the ballot. 13. At close of polls judges at once publicly open box and count and canvass the votes cast, and thereupon make out duplicate certificates of result, writing the number of votes cast for each candidate in words and in figures also. They then seal in one envelope one duplicate certificate, one duplicate register, all the ballots cast, and all the affidavits made, and mail such envelope at nearest post office, registered, if possible, with postage prepaid, to J. F. A. Strong, governor of Alaska, Juneau, Alaska. The other duplicate certificate, duplicate register, with oaths of judges, pay rolls, and watchers' credentials, are forwarded by mail, registered and postage prepaid as above, to G. A. Adams, clerk of court, Nome, Alaska. 14. Judges should be careful to insert all the dates, etc., and sign all the blanks, and have pay rolls signed by all the parties to whom payments are to be made. 15. The law requires full citizenship as qualification to vote. A person not entitled to vote is not qualified to act as judge. 16. Date of election : First Tuesday after first Monday in November, being November 7, 1916. SECTIONS OF THE LAW GOVERNING ELECTIONS. Sec. 394. All male citizens of the United States 21 years of age and over who are actual and bona fide residents of Alaska, and who have been such resi- dents continuously during the entire year immediately preceding the election, and who have been such residents continuously for 30 days next preceding the election in the precinct in which they vote, shall be qualified to vote for the election of a Delegate from Alaska. (See also sec. 1.) Sec. 397. That the judges of election of each voting precinct shall constitute the election board for said precinct, and shall supervise and have charge of the election therein. They shall secure and provide a place for holding the election and a suitable ballot box. They shall pass upon the qualifications of the voter, and, if he be found qualified, receive and deposit his ballot in the ballot box, and shall canvass and make a return of the votes cast, as hereinafter provided. 366 WICKERSHAM VS. SULZER. That the members of said election board in each precinct, before entering upon tlie duties of tlieir office, shall each severally take an oath, which shall be reduced to writing, before an officer qualified to administer oaths, to hon- estly, faithfully, and promptly perform the duties of their positions ; and if no officer qualified to administer oaths be present or available, then any one of said duly appointed or selected judges of election may administer the necessary oath to said other two judges, and he shall afterwards in turn be sworn by one of them. That each of said judges shall have authority to administer any oath to the voter necessary or proper under this act ; and said judges shall have equal authority ; and in case of any question or disagreement over any matter during the course of said election, the decision of the majority of such judges shall govern. That two of the three judges of election in each voting precinct, outside of incorporated towns to be selected by a majority of said judges, shall also per- form the duties of clerks of election for that precinct ; the two judges perform- ing the duties of clerks shall be of different political parties ; it shall be the duty of the clerks at each voting precinct to make a. full written record of such election as held in that precinct, and each of them shall keep a correct duplicate register and enter therein the names of the voters and the fact that they have voted or have offered to vote and were refused, and a brief statement of the reason for said refusal. Sec. 398. That each of the candidates for the office of Delegate herein pro- vided for, at any election held hereunder, shall be entitled to one watcher at each voting precinct, who shall be permitted to be present within the place of voting at such precinct and in some place therein where he may at all times be in full view of every act done. Such watcher shall have the right to be so present at all times from the opening of the polls until the ballots are finally counted and the result certified by the election board. Each watcher shall be required to present to the election board proper credentials, signed by the can- didate he represents, showing him to be the duly authorized watcher for such person. Sec. 399. That in case any of the judges of election selected as herein pro- vided for any precinct shall fail to appear and qualify at the time and place designated for the election for which they shall be appointed, then in that event the qualified voters present may, by a majority viva voce vote, select a suitable person or persons to fill the vacancy or vacancies in said elec- tion board, and the person or persons so selected shall qualify and serve on said election board, with the same powers and in the same manner as if ap- pointed as hereinbefore provided. Sec. 400. That the election boards herein provided for shall keep the several polling places open for the reception of votes from S o'clock a. m. until 7 o'clock p. m. on the day of election. The voting at said election shall be by printed or written ballot. Such ballot shall be folded by the voter so as not to disclose the vote, and by him handed to any one of the judges of election, who shall immediately, in the presence of the voter and of all the members of the election board, de- posit the same, folded as aforesaid, in the ballot box, where the same shall remain \intouched until the polls are closed. At the time the ballot is so deposited the clerks of election shall each of them enter in his duplicate register the name of the voter and the fact that he has voted. Section 3, chapter 25, Session Laws, 1915 (in parts) : The ballots shall be headed " Official ballot " of the judicial division in which it is issued, and at the top thereof, above a perforated line, shall be duplicate stubs bearing consecutive numbers, one of said stubs to be retained by the election judges upon presenting the ballot to the voter, the other stub to be torn from the ballot by the election judges and compared and retained upon tlie return of the voter from the voliing booth ; and each official ballot shall contain, under the title of each office, one blank space for as many candidates as may be voted for to fill such office, below the printed names of candidates upon which may be written names of candidates or persons whose names are not printed upon the official ballot. Sec. 401. That any person offering to vote may be challenged by any election officer or any other person entitled to vote at the same polling place, or by any duly appointed watcher ; and when so challenged, before being allowed to vote, he shall made and subscribe to the following oath: " You do solemnly swear (or affirm, as the case may be) that you are 21 years of age and a citizen of the WICKERSHAM VS. SULZEE, 367 United States ; that you are an actual and bona fide resident of Alaslia, and have been sucli resident during tlie entire year immediately preceding this election, and have been a resident in this voting precinct for 30 days next pre- ceding this election, and that you have not voted at this election," and, further, naming the place from which the voter came immediately prior to living in the precinct in which he offers to vote, and giving the length of time of his residence in the former place. And when he has made such an affidavit he shall be allowed to vote ; but if any person so challenged shall refuse or fail to take such oath and sign such affidavit, then his vote shall be rejected ; and any person swearing falsely to any such affidavit shall be guilty of perjury, and shall, upon conviction thereof, suffer punishment as is prescribed by law for persons guilty of perjury. Sec. 402. That the election board at each polling place, as soon as the polls are closed, shall immediately publicly proceed to open the ballot box and count and canvass the votes cast ; and they shall thereupon, under their hands and seals, make out in duplicate a certificate of the result of said election, specifying the number of votes, in words and figures, cast for each candidate; and they shall then immediately carefully and securely seal up in one envelope one of said duplicate certificates and one of the registers of voters, all the ballots cast, and all affidavits made, and mail such envelope, with said papers inclosed, at the nearest post office, by registered mail, if possible, duly addressed to the governor of Alaska, at his place of residence, with the postage prepaid thereon. The other duplicate certificate and register of voters, with the oaths of the judges of election, the judges of election shall at once seal up in an envelope addressed to the clerk of the district court for the division in which the precinct is situate, at his place of residence, with the postage thereon prepaid, and deposit the same in the nearest post office, by registered mail, if possible. And the said clerk shall, as soon as he receives the said duplicate certificate, at once make out and mail to the governor of Alaska a certified copy of such certificate. The clerks of the district courts for the various divisions of Alaska and the governor of Alaska shall each retain and carefully preserve all such documents received by them until the end of the term for which the Delegate chosen has been elected. Sec. 404. Each newspaper in Alaska authorized to publish the notice of election provided for herein, and having published the same according to law, shall be entitled to receive therefor not more than .$10 for the entire publications of any one election ; that each commissioner in the Territory of Alaska is authorized to contract for the proper posting of all election notices, as provided herein, in each voting precinct created in his said election district, and that not more than the sum of $10 shall be allowed at each election for the posting of said notices in any one voting precinct in Alaska ; that not more than $10 at each election shall be allowed for the rental of a proper polling place in each voting precinct in Alaska ; that each of the judges of election who shall qualify and serve as such in any precinct on said election day, and each of the clerks of election in an incorporated town, shall be entitled to compensation of $5 for all services performed. Sec 412. That the first election for members of the Legislature of Alaska shall be held on the Tuesdaj^ next after the first Monday in November, 1912, and all subsequent elections for the election of such members shall be held on the Tuesday next after the first' Monday in November biennially thereafter ; that the qualifications of electors, the regulations governing the creation of voting precincts, the appointment and qualifications of election officers, the supervision of elections, the giving of notices thereof, the forms of ballots, the register of votes and challenging of voters, and the returns and the canvass of the returns of the result of all such elections for members of the legisla- ture shall be the same as those prescribed in the act of Congress entitled "An act providing for the election of a Delegate to the House of Representatives from the Territory of Alaska," approved May 7, 1906, and all the provisions of said act which are applicable are extended to said elections for members of the legislature and shall govern the same, and the canvassing board created by said act shall canvass tbe returns of such elections and issue certificates of plection to each member elected to the said legishiture ; and all the penal provisions con- tained in section 15 of the said act shall apply to elections for members of the legislature as fully as they uo^^' apply to elections for Delegate from Alaska to the House of Representatives. 368 WICKEESHAM VS. SULZER. Sec. 416. (The last proviso of the section.) That notliing herein contained shall be held to abridge the right of the legislature to modify the qualifications of electors by extending the elective franchise to Avomen. An act of the Legislature of the Territory of Alaska entitled "An act to extend the elective franchise to women in the Territory of Alaska." Be it enacted by the Legislature of the Territory of Alaska: Section 1. That in all elections which are now or may hereafter be authorized by law in the Territory of Alaska or any subdivision or municipality thereof, the elective franchise is hereby extended to such women as have the qualifica- tions of citizenship required of male electors. 1915 SESSION LAWS OF ALASKA, CHAPTEE 25. Sec. 13. That the clerk of the district court shall forward to each United States commissioner in the division and to every election board or authorized official in incorporated towns, at least 100 ballots for each 50 voters in the recording districts and incorporated towns. Sec. 14. That the clerk of the district court shall have printed upon tinted paper sample ballots upon Avhich shall be printed in large type the words : " Sample ballot," 25 of which shall be sent to each voting precinct in the divi- sion and shall be posted or distributed in conspicuous places at any time on or l)efore the date of election by the judges of election. Sec. 16. That every polling place in the Territory shall be provided with booths or screens wherein the voter shall mark his or her ballot: Provided, That not less than one l)ooth shall be furnished for each 100 votes or fractional part threof cast at the previous election. Sec. 17. That when a voter enters the polling place he shall be given an official ballot by one of the election judges, with which he shall retire to the booth or screen and there mark the same for the candidates of his choice. Sec. is. That Avhen any voter mars a ballot so that the legibility is destroyed he may receive a second ballot from the judges of the election, and if necessary a third ballot, but no more than three will be allowed, and the marred ballots must be preserved by the judges of the election and placed with the unused ballots. Sec. 19. That any voter who is blind or otherwise incapable of marking his or her ballot may demand that the judges of election assist him or her, and the judges of the election shall do so. Sec. 21. That in any precinct wliere the election has been legally called and no official ballots have been received, the voters are permitted to write or print their ballots, but the judges of election shall in this event certify to the facts which prevented the use of the official ballots ,which certificate must accompany and be made a part of the election returns. Contestee's Exhibit C. CHAPTER 24. AN ACT To define and establish the political status of certain native Indians within the Territory of Alaska. Be it enacted by the Leyislaturc of flic Tcrntoru of Alaska: Section 1. Every native Indian lioru within the limits of the Territory of Alaska, and who has severed all tribal relationship and adopted the habits of a civilized life in accordance with section 6. chapter 119, twenty-fourth Statutes at Large, 390, may, after the passage and approval of this act, have the fact of his citizenship definitely established by complying with the terms hereafter set forth. Sec. 2. Every native Indian of the Territory of Alaska who shall desire a certificate of his citizenship shall first make application to a United States Gov- ernment, Territorial, or municipal school, and shall be subjected to an examina- tion by a majority of the teachers of such school as to his or her qualifications and claims for citizenship. Such examination shall broadly cover the general qualifications of the applicant as to an intelligent exercise of tlie obligations of suffrage, a total abandonment of any tribal customs or relationship, and the facts regarding the applicant's adoption of the habits of a civilized life. Sec. 3. Any native Indian of the Territory of Alaska who shall obtain a cer- tificate in accordance with section 2 of this act, whch certificate shall set forth WI0KE3ESHAM VS. SULZEE. 369 that a proper examination has been duly held aijd the applicant found to have abandoned all tribal ciistoms and relationship, to have adopted the ways and habits of a civilized life, and to be properly qualified to intelligently exercise the obligations of an elector in the Terrifcoi'y of Alaska, shall thereupon obtain an indorsement upon said certificate by at least five white citizens of the United States who have been permament residents of Alaska for at least one year, who were not members of the examining board as provided in section 2, to the effect that such citizens have been personally acquainted with the life andi habits of such Indian for a period of at least one year, and that in their best judgment such Indian has abandoned all tribal customs and relationship, has adopted the ways and habits of a civilized life, and is duly qualified to exer- cise the rights, privileges, and obligations of citizenship. Sec. 4. Upon securing such certificate as provided by sections 2 and 3 of fills' act, properly signed in ink. the applicant shall forward the same, together with an oath duly acknowledged to the effect that such applicant forever renounces all tribal customs and relationships, to the United States district court for the division in which the applicant resides praying for the granting of a certificate of citizenship. Sec. 5. Upon receiving such application the judge of the district court shall set a day of hearing on such application, which shall not be less than 60 days from the date of receipt of such application, whereupon the clerk of the district court shall post a notice in the office containing the name of the applicant and the facts set forth in his application, and the date set for the hearing upon the application, and shall immediately forward a copy of such notice to the appli- cant, whereupon the applicant shall post such notice or a copy thereof in a con- spicuous place at the post office nearest to his or her residence. Sec. 6. Upon approval of such application by the judge of the United States district court for the division in which the applicant resides the said judge shall issue a certificate certifying that due proof has been made to him that the said applicant is " an Indian born within the Territorial limits of the United States, and that he has voluntarily taken up within said limits his residence separate and apart from any tribe of Indians therein and has adopted the habits of civilized life." Said certificate, when presented in court or otherwise, shall be taken and considered as prima facie evidence of the truth of the state- ments therein contained. Approved April 27. 19] 5. Contestee's Exhibit D. chapter 25. AN ACT To provide official ballots for elections In the Territory of Alaska. Be it enacted hy the Legislature of the Territory of Alaska: Section 1. That after the passage of this act for all elections in the Territory of Alaska provided for in an act T)f Congress entitled "An act to create a Legis- lative Assembly in the Territory of Alaska, to confer legislative powers thereon, and for other purposes," approved August 24, 1912, the clerk of the district court of each judicial division of the Territory shall prepare ballots for use in their respective divisions. Sec. 2. That every ballot printed under the provisions of this act shall be printed upon white paper of sufficient width and length to afford space for the names of all the candidates to be voted for and blank spaces for the insertion of names of candidates not printed upon the ballots. The names of all candi- dates nominated in accordance with the pi-ovisions of this act shall be printed uioon the ballots. Sec. 3. The ballots shall be headed " Official ballot " of the judicial division in which it is issued. At the top thereof, above a perforated line, shall be dupli- cate stubs bearing consecutive numbers, one of said stubs to be retained by the election judges upon presenting the ballot to the voter, the other stub to be torn from the ballot by the election judges and compared and retained upon the return of the voter from the vothig booth, and each official ballot shall contain under the title of each office one blank space for as many candidates as may be voted for to fill such office, below the printed names of candidates upon \vhich maj be written names of candidates or persons whose names are not printed upon the official ballot. The clerk of the court shall, in preparing said ballot, provide space in conformity with this act for the names of candidates for any additional offices which may hereafter be created for the Territory. 13289—17—24 370 WICKEKSHAM VS. SULZEE. No. ^ No. • (Perforated line.) OFFICIAL BALLOT. judicial division. Mark X in the square at tlie left of the name of the candidate for whom you desire to vote. If names of candidates for whom you desire to vote do not appear on the hallot, insert with pencil in blank space. For Delegate to Congress (vote for one). Brown, Richard. Doe, John. For Territorial Senator (vote for ). For Territorial Representatives (vote for 4). Provided, That in case there are two Territorial senators to be elected, tlie terms for which the candidates are to be elected shall be printed on the ballot in the following manner : John Doe (long term). Richard Roe (short term). Sec. 4. At the top of the ballot shall appear the following instructions to the voters : " Mark X in the square at the left of the name of the candidate for whom you desire to vote. If names of candidates for whom you desire to vote do not appear on the ballot, insert with pencil in blank spaces." Sec. 5. That the names of the candidates. for the several offices shall be printed upon the ballots in alphabetical order of the first letters of their family names. Sec. 6. That black lines shall be printed upon the ballots to separate the spaces wherein are printed the names of candidates, and at the left-hand end of each space provided for the names of candidates, shall be printed in black lines a square wherein the voter shall mark X to designate the candidate for whom he desires to vote. Sec. 7. That the first list of names printed upon the ballots in alphabetical order, as provided for in section 6 of this act, shall be the names of candidates for the office of Delegate to Congress, and at the top of the list shall be printed the words : " For Delegate to Congress " and " Vote for one." Sec 8 That the second list of names printed upon the ballots in alphabetical order as provided for in section 6 of this act, shall be the names of candidates for the office of Territorial senator, and at the top of the list shall be printed the words : " For Territorial senator " and " Vote for ." Sec 9 That the third list of names printed upon the ballots in alphabetical order as provided for in section 6 of this act, shall be the names of candidates for the office of representative to the Territorial Legislature, and at the top of the list shall be printed the words : " For representative to the legislature ^^Sec 10 That on" the back and outside of every ballot shall be printed the words: " Official ballot," followed by the designation of the judicial division for WICKEESHAM VS. SULZEE. 371 f which the ballot is prepared, the date of the election, the official indorsement of the clerk of the court, and blank certificates in the following form : " We certify that the within ballot was marked by us for an elector incapable under the law of marking his own ballot, and as directed by him," and " signed judges of election." Sec. 11. That the name of any candidate for the office of Delegate to Congress shall be placed upon the official ballot upon the filing of nomination papers bearing the signature of not less than 250 qualified voters of the Territory, not less than 75 days before the date of the election with the clerk of the district court of the judicial division in which the candidate resides, and such clerk shall immediately forward certified copies of the nomination papers to the clerks of the court of the other judicial divisions, and such certified copies shall be accepted for filing and have the same force and effect as the original nomination papers. Sec. 12. That the name of any candidate for the office of Territorial senator, or for the office of representative to the Territorial Legislature, shall be placed on the official ballot upon the filing of nomination papers bearing the signatures of not less than 100 qualified voters of the judicial division in which the candi- date resides, not less than 75 days before the election, with the clerk of the district court of the judicial division in which such candidate resides. Sec. 13. That the clerk of the district court shall forward to each United States connnissioner in the division and to every election board or authorized official in incorporated towns, at least 100 ballots for each 50 voters in the re- cording districts and incorporated towns. Sec. 14. That the clerk of the district court shall have printed upon tinted paper sample ballots upon which shall be printed in large type, the words, " Sample ballot," 25 of which shall be sent to each voting precinct in the division and shall be posted or distributed in conspicuous places at any time on or before the date of election, by the judges of election. Sec. 15. That the United States commissioner of each recording district shall deliver to the election judges or the authorized officials in incorporated towns the required number of ballots for each voting precinct. Sec. 16. That every polling place in the Territory shall be provided with booths or screens wherein the voter .shall mark his or her ballot : Provided, That not less than one booth shall be furnished for each 100 votes or fractional part thereof, cast at the previous election. Sec. 17. That when a voter enters the polling place he shall be given an official ballot by one of the election judges with Avhich he shall retire to the booth or screen and there mark the same for the candidates of his choice. Sec. 18. That when any voter mars a ballot so that the legibility is destroyed, he may receive a second ballot from the judges of the election, and if necessary, a third ballot, but no more than three will be allowed, and the marred ballots must be preserved by the judges of the election and placed with the used ballots. Sec. 19. That any voter who is blind or otherwise incapable of marking his or her ballot, may demand that the judges of election assist him or her, and the judges of the election shall do so. Sec. 20. That the act of Congress entitled "An act providing for the election of a Delegate to the House of Representatives from the Territory of Alaska," approved May 7, 1906. or any acts amendatory thereof shall continue to apply to all elections except in so far as it is modified or amended by this act. Sec. 21. That in any precinct where the election has been legally called and no official ballots have been received the voters are permitted to write or print their ballots, but the judges of election shall in this event certify to the facts which prevented the use of the official ballots, which certificate must accompany and be made a part of the election returns. Sec. 22. The clerk of the court shall provide each polling place with a book to be known as the registration book, on the third page of which shall be printed the qualifications of the voter, as follows: "Any person of the age of 21 years or more who is a citizen of the United States, who has lived in the Territory of Alaska one year and in the judicial division in which he or she offers to cast his or her vote 30 days immediately preceding such election, shall be entitled to vote at all elections held therein: Provided, That all idiots, insane persons, and persons who have been convicted on an infamous crime are excluded from sucl: right and privilege : And jirovided further. That no per- son shall be deemed to have lost his residence by reason of his absence while in the civil or military service of the Territory or the United States, nor while a student at any institution of learning, nor while kept a public charge at any 372 WICKERSHAM VS. SULZER. poorhouse or any other asylum, nor while confined in any public prison, nor while engaged in navigation of the waters of this Territory of the United States, or the high seas; absence from the Territory of said judicial division or city or town wherein election is held, on business, shall not affect the ques- tion of residence, provided he or she has not claimed such right else'where. One of the said judges shall keep said registration book, and before any voter shall receive his or her official ballot, he or she shall sign his or her name in said book, which signature shall lie a statement of said voter to the effect that he or she is qualified to vote under this act. Sec. 23. Any person who can qualify as a legal voter in the division in which he or she attempts or offers to vote, may qualify and vote in any election pre- cinct in such division by subscribing to the qualifications required for registra- tion in this section. Any person who makes a false statement of his or her qualifications to vote, shall be punished, upon conviction by a fine of not less than $25 nor more than $200, or by imprisonment in the Federal jail for not less tlian 10 days nor more than 60 days, or by both fine and imprisonment in the discretion of the court. Sec. 24. Penalty for violation of election laws : Any person or officer who has assumed the duties of any officer under the provisions of this act, who shall willfully and corruptly fail, neglect, or refuse to perform any duty or do anything required of him by this act, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not less than $100 nor more than $1,000, or by imprisonment in the Federal jail for a period of not less than one month, nor more than one year, or by both such fine and im- prisonment : Provided, hoicever-, That the provisions of this section shall not apply to any case Avhere special punishment is provided by this act. Sec. 25. Intimidation of voters: No person shall in any way directly or in- directly, by menace or other corrupt means or device (directly or indirectly) attempt to influence any person in giving or i-efusing to give his vote in any such election, or to deter or dissuade any person from giving his vote therein, or to disturb, hinder, persuade, threaten, or intimidate any person from giving his vote therein, nor shall any person at any such election, knowingly, and Vi'illfully make any false assertion or propagate any false report concerning any person who shall be a candidate thereat, which shall have a tendency to pre- vent his election, or with a view thereto, and if any person shall be guilty of any act forbidden or declared to be unlawful by this section, he shall be deemed and taken to be guilty of a misdemeanor, and on conviction thereof, shall be punished by fine or imprisonment, or both, at the discretion of the court before (whom) such conviction shall be had: Provided, That in no case shall such fine exceed the sum of $250 or sluch imprisonment the term of six months. Sec. 26. Fraudulent voting: If any elector shall vote, or attempt to vote more than once at any election, or shall knowingly hand in two or more tickets together, or having voted in one division, precinct, town, or ward, shall after- wards on the same day. vote, or attempt to vote in another division, precinct, town, or ward, such person shall be guilty of a misdemeanor and shall be prohibited from voting at any election or holding any public office for two years thereafter. Sec. 27. Disqualified persons voting: If any person, knowing that he does not possess the legal qualifications of a voter, at any election authorized by law to be held in this Territory for any office whatever, shall vote at such election, such person shall be guilty of a felony. Sec 28. Collusion of election officers : If any inspector or judge of any such election shall knowingly permit any elector to cast a second vote at any such election, or shall knowingly permit any person not a qualified elector to vote at any such election, such inspector or judge of election shall be guilty of a felony and be incapable ^f holding any public office in this Territory for five years thereafter. Sec. 29. Officers attempting to influence voter : If any inspector, judge, or clerk of an election shall attempt to induce, by persuasion, menace, or reward, or promise thereof, any elector to vote for any person, such inspector, judge, or clerk shall be guilty of a felony. Sec 30. Tampering with ballot by officer: If any judge, inspector, clerk, or any other officer of an election shall open or mai*k, by folding or otherwise, any ticket presented by such elector, at such election, or attempt to find out the names thereon, or suffer the same to be done by any otlier person, before such ticket Is deposited in the ballot box, such judge, inspector, or clerk shall be guilty of a felony. WICKEESHAM VS. SULZEE. 373 Sec. 31. Intimidating or bribing voter : If any person shall use menace, force, threat, or corrupt means at or previous to any election held pursuant to the laws of the Territory toward any elector, to hinder or deter such elector from voting at said election, or shall, directly or indirectly, offer any bribe or reward of any kind to induce any elector for or against any person, proposition., or shall authorize any person so to do, such person shall be guilty of a felony. Sec. 32. Fraudulent attempt to influence voter : If any person shall fraudu- lently cause, or attempt to cause, any elector, at any election held pursuant to law in this Territory, to vote for a person different from the one he intended to vote for, such person so offending shall be fined not more than $100 nor less than $10. Sec. 33. Inducing certain Indians to vote : If any person shall induce, or at- tempt to induce, any Indian or descendant of the aboriginal races, or any other person, to vote or offer his vote at any such election, when he is not legally entitled so to do, such person so offending, upon conviction thereof, shall be *fined in the sum not exceeding $500, to which may be added imprisonment in the Federal jail not to exceed three months : Provided, That this section shall not be so construed as to include Indians or descendants of the aboriginal races inhabiting Alaska who are or who shall have become citizens and entitled to vote under the laws of the United States and the Territory of Alaska. Sec. 34. Nonfeasance or malfeasance of election officers : Every person charged with the performance of any duty under the provisions of any law of this Territory relating to elections, or to any primary or any other primary elec- tion held pursuant to law, who willfully neglects such duty, or who, in the performance of such duty, or in his official capacity, knowingly violates any of the provisions of law relating to such duty, shall be guilty of a felony and shall be punished by a fine of not more than $1,000 or imprisonment in a peni- tentiary for a period of not to exceed two years, or both such fine and im- prisonment. Sec. 35. Sale of liquor on election day : Any person who shall barter, sell, give away, or in any manner dispose of any intoxicating liquors, on the day of any general or special election of Territorial, divisional, or municipal officers within the Territory, division, or municipal corporation in which said election is held, and before the polls have closed, shall, on conviction thereof, be punished by a fine of not less than $100 nor more than $500 or by imprisonment in the Federal jail not less than 10 nor more than 30 days, or both, in the dis- cretion of the court. Sec. 36. Bribery or influencing voter : If any candidate for office, in any elec- tion as hereafter mentioned under the laws of this Territory, or any other person, shall directly or indirectly offer, promise, procure, confer, or give any money, property, thing of action, victuals, drink, preferment, or other con- sideration or valuable thing by way of fee, reward, gift or gratuity, for giving or refusing to give any vote in any election of any public officer, Territory, division or municipal whatever, or any person who shall carry voters to any polling place by wagon, steamboat, or otherwise, for the purpose of influencing their votes, such person shall be deemed and taken to be guilty of a misde- meanor, and on conviction thereof, be punished by a fine or imprisonment, or both, at the discretion of the court, said fine not to exceed $1,000, nor such imprisonment to exceed six months in a Federal jail : Provided further, Such person shall, on such conviction, and as part of the judgment of the court, be deprived of the right of suffrage, and such candidate for office shall be dis- qualified to hold any office to which he was elected at such election; And provided further. If any person shall dii'ectly or indirectly ask for, accept, receive or take any such bribe, or the promise thereof, for giving or refusing to give his vote in any such election, he shall be deemed guilty of a misde- meanor and punished with the like penalties as hereinbefore prescribed. Sec. 87. Unlawful printing or distributing of official ballots : Any printer, busiiiess manager, or publisher employed by any officer authorized by the laws of this territory to procure the printing of any official ballot, or any person engaged in printing the same who shall appropriate to himself or give or deliver or knowingly permit to be taken any of said ballots by any person other than such officer so authorized by law to receive the same, or who shall willfully print or cause to be printed any official ballot in any other form than that prescribed by law or as directed by the officer so authorized to procure the said printing, or with any other names thereon or with the names spelled otherwise than as directed by such officer, or the names or printing thereon arranged in any other way than that authorized and directed by law, shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to 374 WICKERSHAM VS. SULZEE. pay a fine not exceeding $1,000 nor less than $500, or imprisonment in the Federal jail for a term not exceeding one year nor less than six months, or both at the discretion of the court. Sec. 38. Unlawful possession or counterfeiting of official ballots : Any person other than the officer charged by law with the care of ballots, or a person intrusted by any such officer with the care of the same for the purpose required by law, who shall have in his possession outside of the voting room any offi- cial ballot, or any person who shall make or have in his possession any counter- feit of any official ballot, shall be guilty of a misdemeanor, and upon conviction thereof shall be sentenced to pay a fine of not exceeding $1,000 nor less than $500, or to undergo imprisonment in the Federal jail for a term not less than six months or more than one year, or both at the discretion of the court. Sec. 39.' Penalty where no other is provided : In the event that any person shall be convicted of the violation of any one or more of the provisions of the election laws and no other penalty therefor shall be named herein he shall pay a' fine of not more than $1,000 or be imprisoned in the Feileral jail for not more than one year, or by both sucli fine and imprisonment, in the discretion of the court. Sec. 40. Allowance of time for employees to vote : Any person entitled to vote at a general or special election held within this Territory as herein pro- vided shall, on the day of such election, be entitled to absent himself from any service or employment in which he is then engaged or employed for a period of at least two liours while the polls of such election are open. If such elector shall notify his employer before the day of such election of such intended absence, and if thereupon two consecutive hours for such absence shall be designated by the employer and said absence shall be during such designated hours, or if the employer upon the day of such notice makes no designation,, and such absence shall be during any two consecutive hours while such polls are open, no deduction shall he made from the usual salary or wages of such voter, and no other penalty shall be imposed by reason of such employer or person having the direction of or being in charge of persons employed by another shall violate the provisions of this section, he shall be guilty of a misdemeanor and shall be punished by a fine of not more than $1,000 or by imprisonment in the Federal jail for not more than one year, or by both such fine and imprisonment. Sec. 41. All acts or parts of acts in conflict with this act are hereby repealed in so far as they affect this act. Approved, April 27, 1915. United States or America, Territory of Alaska, second dwision, ss: I, D. B. Chace, a notary public in and for the Territory of Alaska, do hereby certify that the witnesses — Herbert Spencer, Russell Bowen. G. A. Adams, Robert .lames, W. R. Hayes, E. E. Adams, Louis Ericson, Fred Larsen. and Frank IMartin — in the foregoing depositions were by me duly sworn to tell the truth, the whole truth, and nothing but the truth ; that said depositions were then taken down by me in shorthand at the time and place mentioned in the annexed notice, to wit, at the office of Hugh O'Neill, in Nome, Alaska, on the 25th day of July, 1917, between the hours of 2 o'clock p. m. and 6 o'clock p. m. of said day ; that said depositions were thereafter by me reduced to writing, and when completed were carefully read over by said witnesses and by them subscribed in my presence ; tliat pages 1 to 68. inclusive, was all the testimony given at said time; that Exhibits A, B, C, and D attached hereto are the exhibits introduced at the taking of said testimony. Witness my hand and notarial seal this 31st day of .Tuly, 1917, at Nome. Alaska. [seal.] D. B. Chace, Notary public for the territory of Alaska, Residing at Nome, Alaska. SUBPCENAS. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting. To Herbert Spencer. You are hereby required that all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Himter Way, in Nome, Alaska, on the 25th day of July, 1917, at 2 o'clock p. m. of said day, then and WICKEESHAM VS. SULZEE. 375 there to testify in the above-entitled cause now pending before tlie House of Representatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom Avitliout leave. And for a failure to attend as above required you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [SEAL.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. (My commission expires May 12, 1921.) United States of America, Territory of Alaska, second division, ss: Hugh O'Neill, being duly sworn, on oath deposes and says : I am a white male citizen of the United States over and above the age of 21 years ; that I reside at Nome, Alaska ; that on the 18th day of July, 1917, I personally served the within subpoena upon Herbert Spencer, by then and there delivering a copy of the within subpoena and at the same time exhibiting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this ISth day of July, 1917. [seal.] D. B. Chace, Notary PtMic for the Territory of Alaska, residing at Nome. (My commission expires May 12, 1921.) Due service and receipt of a copy of the within subpoena is hereby admitted at Nome, Alaska, this ISth day of July, 1917. H. Spenceb. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting. To Russell W. Bowen : You are hereby required that all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter Way, in Nome, Alaska, on the 25th day of July, 1917, at 2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of Representatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. (My commission expires May 12, 1921.) United States or Ameeica, Territory of Alaska, second division, ss: Hugh O'Neill, being duly sworn, deposes and says : I am a white male citizen of the United States, over and above the age of 21 years; that I am a resident of Nome, Alaska: that on the 19th day of July, 1917, I personally served the within subpoena upon Rusel Bowen by then and there delivering a copy of the within subpoena and at the same time exhil)iting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 19th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. Due service and receipt of a copy of the within subpoena is hereby admitted at Nome, Alaska, this 19th day of July, 1917. Russell W. Bowen. 376 WICKEESHAM VS. SULZEE. The President of the United States of America, the House of Representatives of tlie United States, and D. B. Chace, notary public for Alaslva, greeting: To G. A. Adams: You are hereby required tliat all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter Way, in Nome, Alaska, on the 25th day of July, 1917, at 2. o'clock p. m. of said day, then and there ♦to testify in the above-entitled cause, now pending before the House of Repre- sentatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [seal.] D. B. Chace, Notm'y Public for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. United States of America, Territory of Alaska, second division, ss: Hugh O'Neill, being duly sworn, deposes and says : I am a white male citizen of the United States, over and above the age of 21 years ; that I reside at Nome, Alaska ; that on the 19th day of July, 1917, I per- sonally served the within subpoena upon G. A. Adams, by then and there deliver- ing a copy of the within subpoena, and at the same time exhibiting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 19th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. Due service and receipt of a copy of the within subpoena is hereby admitted at Nome, Alaska, this 19th day of July, 1917. G. A. Adams. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting : To RoBT. James : You are hereby required that all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter Way, in Nome, Alaska, on the 2.5th day of July, 1917, at -2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of Representatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required, you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. (My commission expires May 12, 1921.) United States of Ameeica, Territory of Alaska, second division, ss: HUGH O'NEILL, being duly sworn, on oath deposes and says : I am a white male citizen of the United States over and above the age of 21 years ; that I am a resident of Nome, Alaska ; that on the 12th day of July, 1917, I personally served the within subpoena upon William Priest by then and WIOKEESHAM VS. SULZER. 377 there delivering a copy of the within subpoena, and at the same time exhibiting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 12th day of July, 1917. [SEAi..] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. (My commission expii'es May 12, 1921.) Due service of the within subpoena is hereby admitted at Nome, Alaska, this 12th day of July, 1917. Robert James. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting : To W. M. Hayes: You are hereby required that all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter Way, in Nome, Alaska, on the 25tli day of July, 1917, at 2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of Representatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required, you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [seal.] D. B. Chace, Notary Puhlic for the Territory of Alaska, residing at Nome. (My commission expires May 12, 1921.) United States of Ameeica, Territory of Alaska, second division, ss: Hugh O'Neill, being duly sworn, deposes and says : I am a white male citizen of the United States over and above the age of 21 years ; that I am a resident of Nome, Alaska ; that on the 13th day of July, 1917, I personally served the within subpoena upon W. R. Hayes by then and there delivering a copy of the within subpoena and at the same time exhibiting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 13th day of July, 1917. [SE^L.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. Due service of the within subpoena is hereby admitted at Nome, Alaska, this 13th day of July, 1917. W. R. Hays. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting : To E. E. Adams : You are hereby required that all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Huiiter Way, in Nome, Alaska, on the 25th day of July, 1917, at 2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of Representatives of the United States, Sixty-fifth Congress, first ses- sion, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seft of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [SEAL.] D. B. Chace, Notary Public far the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. 378 WICKERSHAM VS. SULZER. United States oe Ameeica, Territory of Alaska, second cUvision, ss: Hugh O'Neill, being duly sworn, deposes and says : I am a white male citizen of the United States over and above the age of 21 years ; that I reside at Nome, Alaska ; that on the 19th day of July, 1917, I personally served the within subpoena upon E. E. Adan^s by then and there delivering a copy of the within subpoena and at the same time exhibiting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 19th day of July, 1917. [seal.] D. B. Chace, Notary PubJic for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. Due service and receipt of a copy of the within subpoena is hereby admitted at Nome, Alaska, this 19th day of July, 1917. E. E. Adams. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting : To Louis Eeickson : You are hereby required that, all and singular business and excuses being set aside, you appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter AVay, in Nome, Alaska, on the 25th day of July, 1917, at 2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of Representatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. • And for a failure to attend as above required you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness Avhereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [seal.] D. B. Chace, Notary PuMie for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. United States of Ameeica, Territory of Alaska, Second, Division, ss: Hugh O'Neill, being duly sworn, on oath deposes and says : • I am a white male citizen of the United States over and above the age of 21 years ; that I reside at Nome, Alaska ; that on the 19th day of July, 1917, I personally served the within subpoena upon Louis Erickson by then and there delivering a copy of the within subpoena and at the same time exhibiting the . original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 19th day of July, 1917. [SEAL.] D. B. Chace, Notary Fuhlic for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. The President of the United States of America, the House of Representatives of the United States, and D. B. Chace, notary public for Alaska, greeting : To Feed Lab son : You are hereby required that, all and singular business and excuses being set aside, vou appear and attend before D. B. Chace, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter Way, in Nome, Alaska, on the 25th day of July, 1917. at 2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of itepresentatives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required you will lie deemed guilty of contempt and liable to pay the party aggrieved the damage sustained thereby. WICKERSHAM VS. SULZER. 379 In witness wliei'eof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome. Alaska, this 11th day of July, 1917. [SEAL.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. United States of America, Territory of Alaska, Second Division, ss: Hugh O'Neill, being duly sworn, deposes and says : I am a white male citizen of the United States over and above the age of 21 years ; that I reside at Nome, Alaska ; that on the 13th day of July, 1917, I personally served the within subpoena upon Fred Larson by then and there delivering a copy cf the within subpoena to him and at the same time exhibiting the original thereof to him. Hugh O'Neill Subscribed and sworn to before me this 13th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. My commission expires Maj^ 12, 1921. Due service of the within subpoena is hereby admitted at Nome, Alaska, this 13th day of July, 1917. Feederik Laesen. The President of the United States of America, the House of Representatives of the United .States, and D. B. Chace, notary public for Alaska, greeting: To Feank Maetin : You are hereby required that all and singular business and excuses being set aside you appear and attend before D. B. Chase, a notary public for Alaska, at the office of Hugh O'Neill, on Front Street, near Hunter AVay, in Nome, Alaska, on the 25th day of July, 1917, at 2 o'clock p. m. of said day, then and there to testify in the above-entitled cause now pending before the House of Representa- tives of the United States, Sixty-fifth Congress, first session, on the part of the contestee, and you are not to depart therefrom without leave. And for a failure to attend as above required you will be deemed guilty of contempt and liable to pay to the party aggrieved the damage sustained thereby. In witness whereof I have hereunto set my hand and caused the official seal of my office to be affixed at Nome, Alaska, this 11th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome. My commission expires May 12, 1921. United States of Ameeica, Territory of Alaska, Second Division, ss: Hugh O'Neill, being duly sworn, deposes and says : I am a white male citizen of the United States over and above the age of 21 years ; that I reside at Nome, Alaska ; that on the 11th day of July, 1917, I personally served the within subpoena upon Frank Martin by then and there delivering a copy of the within subpoena to him and at the same time exhibiting the original thereof to him. Hugh O'Neill. Subscribed and sworn to before me this 11th day of July, 1917. [seal.] D. B. Chace, Notary Public for the Territory of Alaska, residing at Nome, My commission expires May 12, 1921. Due service of the within subpoena is hereby admitted at Nome, Alaska, this 11th day of July, 1917. Feank Maetin. deposition of contestee. Disteict of Columbia, City of Washington, ss: Pursuant to a notification signed by counsel for contestee, dated at Seattle, Wash.. July 17, 1917. directed to the Hon. James Wickersham, contestant, namely, that the testimony of Hon. Charles A. Sulzer, contestee in the above- 380 WICKEESHAM VS. SULZEE. entitled cause, would be taken before Sebe Newman, notary public in and for the District of Columbia, in the office of James T. Lloyd, Room 708, Woodward Building, Washington, D. 0., beginning at 10 o'clock a. m. of Thursday, July 26, 1917, the following appeared in the said office of James T. Lloyd, Room 708, Woodward Building, Washington, D. C, at the time aforementioned, namely, 10 o'clock a. m. of Thursday, July 26. 1917, for the purpose of taking the deposition of the said Hon. Charles A. Sulzer : Appearances: Hon. Charles A. Sulzer. contestee; James T. Lloyd, counsel for contestee ; Henry W. Elliott, representing contestant ; Sebe Newman, notary public ; Rexford L. Holmes, shorthand reporter. Prior to the taking of his deposition Hon. Charles A. Sulzer, through his counsel, James T. Lloyd, submitted the following: Exhibit 1. Notice of contest, dated Washington, D. C, April 10, 1917, signed by contestant. Exhibit 2. Answer of contestee to notice of contest, dated April 9, 1937. Exhibit 3. Reply of contestant to answer of contestee, dated May 12, 1917. Exhibit 4. Contestee's answer to contestant's reply, dated May 16, 1917. Exhibit 5. Certified copy of the petition or alternative writ of mandamus, the answer of John F. Pugh, the answer of J. F. A. Strong and Charles E. Davidson, the stipulation, memorandum opinion on demurrer to defendant's answer, order sustaining demurrer to answers, letter of J. F. A. Strong and Charles E. Davidson, letter from Judge Robert W. Jennings, letter of J. F. A. Strong and Charles E. Davidson, motion of plaintiff, order that alternative writ of mandamus be made peremptory, and peremptory writ of mandamus in cause No. 1593-A, entitled " The Territory of Al:isk:i on the relation of Charles A. Sul- zer, and Charles A. Sulzer, relator and plaintiff, r. The Canvassing Board for the Territory of Alaska, consisting of J. F. A. Strong, Charles E. Davidson, and John F. Pugh, defendants." Exhibit 6. Copy of letter dated February 16, 1917, from the governor of Alaska to the attorney general of Alaska, asking his opinion on 22 different questions. Also answer of the attorney general to the governor of Alaska, in reply to the 22 questions asked by the governor. Exhibit 7. Certified photographic copy of the original registration book of the Choggiung voting precinct, Bristol Bay recording district, third division, Terri- tory of Alaska. Exhibit 8. Certified photographic copy of the original registration book of the Afognak voting precinct, Kodiak recording district, third division, Territory of Alaska. Exhibit 9. Certified photographic copy of the original registration book of the Seldovia voting precinct, Kenal recording district, third division, Territory of Alaska. Exhibit 10. Telegram from S. B. Mclntyre, captain of the Fourteenth Infan- try, addressed to the commanding general, San Francisco, Cal., which reads as follows : " United States attorney this district is of the opinion, and has so expressed in writing, that enlisted men serving in Alaska for over one year are entitled to A'ote at coming election. Request instructions at once and interin-etation of permanent-domicile paragraph 1860, Revised Statutes United States." The telegram is dated Fort Gibbon, Alaska, November 1, 1916; also answer to said telegram, dated San Francisco, by way of . Seattle, November 6, 1916, as f ollovA''s : " Your telegram November 1, re enlisted men voting, presents abstract ques- tion. No genei-al decision can be gi^'en. Each case must be decided on merits, Exercise extreme caution. " Baeette. "A true copy. " S. B. McIntyke, " Captain, Fourteenth Infantry." Also copy of memorandum, as follows : " Headquakteks, Fort Gibbon, Alaska, " Novembei' 6, 1916. " Memorandum : " Under date of October 17, 1916, the United States attorney of the fourth judicial district of Alaska has expressed the opinion that enlisted men are entitled to vote at the coming election, provided they are citizens of the United WICKERSHAM VS. SULZEE. 381 States and have been residents of Alaska for one year and have resided within the district for 30 days immediately preceding the date of election. " The attention of all concprued is invited to the fact that only actual and legal residents of Alaska are entitled to vote ; that a declaration of legal resi- dence in Alaska forfeits the legal residence of the voter in his permanent domi- cile, as no citizen can have legal residence in more than one State. " Enlisted men desiring to vote will see the commanding officer in his office before so doing so. " S. B. McIntyee, " Gapt'zin, Fourteenth Infantry, Commanding. "A true copy. " S. B. McIntyee, " Captain, Fourteenth Infantry.'" Exhibit 11. Polling list, Fort Gibbon precinct. Exhibit 12. Notice of time and place for taking depositions of witnesses ; also proof of service of notice of time and place for taking depositions of witnesses. Hon. CHARLES AUGUST SULZER, having first been duly sworn, deposes and says : I was nominated as a candidate for the office of Delegate to Congress from Alaska by the regular convention of the Democratic Party, held in the city of Juneau, Alaska, in May, 1916. This convention was duly called and largely attended by regularly elected delegates. I was the unanimous choice for can- didate for Delegate. In making the campaign I visited all parts of Alaska, with the exception of the most remote sections of the Territory, Avhich it was impossible to reach in the four months' time available. All traveling and personal expenses during this trip were paid from my personal funds. The contestant states that all the officials of the Territory were in my control I deny this categorically. I admit that many officials supported me, but equally as many gave their support to my opponent, Mr. Wickersham. The contestant represents that all of the commissioners in Alaska were appointees of the judges appointed by the national Democratic administration, and that therefore all the election machinery of the Territory was in my control, the inference sought to be conveyed being that the election machinery was thus used to fur- ther the interests of my candidacy. I deny that any such condition existed, and declare that in many cases throughout Alaska commissioners in office at the election of 1916 were appointed to these offices many years previous to the Democratic administration, and that they were of a political faith other than my own. The contestant endeavors to represent that the precinct of Fort Gibbon, in the fourth judicial division, was first created in 1916 for the express purpose of having the soldiers residing there vote for me. I deny emphatically a^y such action and file herewith and ask to have made a part of the official record a certified copy of the poll list and certificate of returns from Fort Gibbon voting precinct for the election held Tuesday, November 3, 1914, attested to by the secretary of Alaska under his official seal. This document shows conclusively that Fort Gibbon has been a duly created voting precinct at elections previous to that of 1916, and the returns further show that contestant herein received nearly all the votes for Delegate at Fort Gibbon in the election of 1914. Further, a comparison of the official returns of the elections of 1914 with those of 1916 shows that the change in the vote at Fort Gibbon against contestant herein was not confined to Fort Gibbon precinct, but that exactly the same reversal obtained in every precinct on the Yukon River, and in fact throughout the whole fourth judicial division, for in the election of 1914 the contestant herein received 2,048 votes in this division against 712 for his nearest opponent, whereas in the election of 1916 the con- testant herein failed to carry the division, losing it by 19 votes. Neither the Democratic Party in Alaska nor myself had anything to do with establishing the Fort Gibbon precinct or the conduct of the election there any more than we had in any other precinct of the Territory. The voting of soldiers at Fort Gibbon was made in strict accordance with the law ; I knew nothing of the rules and regulations for voting them ; all I was aware of was that the Territorial law made it possible for American citizens claiming Alaska as their residence who had been in the Territory for one year and in the judicial division for 30 days prior to the election to cast their votes. 382 WICKEESHAM VS. SULZER. I wish to offer in evidence as part of my deposition attested copies of tele- grams passing between tlie commanding officer at Fort Gibbon and tlie depart- mental headquarters at San Francisco, as well as a memorandum posted on the bulletin board at Fort Gibbon on the day of election. At the time of the election I was in Anchorage, Alaska, 500 miles from Fort Gibbon. After the election 1 immediately returned to my home and devoted myself intensively to my business affairs, which had suffered considerably dur- ing my long absence. I reside on the west coast of Prince of Wales Island, about 300 miles from the capital at Juneau. The mails, running once a week, furnish the only means of communication with the outside world. I was not in touch with the cauvass of the returns of the election and took no part what- ever in said canvass. All of my attention during this period was centered in my business affairs. Arriving at Juneau on March 1 to attend the session of the legislature, in which I was one of two senators representing the first judicial division, I was apprised that a majority of the canvassing board, to wit, Gov. Strong and Secretary Davidson, had concluded to issue a certificate of election to Wicker- sham. Messrs. Helleuthal and Winn advised me that on behalf of the Demo- cratic party they had represented me during the canvass and had protested against the counting of the returns from certain precincts owing to the fact that these precincts had made returns that obviously were grossly in violation of mandatory provisions of the Australian ballot laws. There were grave reasons to believe that some of the returns at least were fraudulent. They stated that the questions had been submitted by the canvassing board to the attorney general of the Territory asking for his legal opinion, and that the said written opinion, given to the board in due course, clearly stated that the precincts in controversy had made illegal returns and could not be counted. I was advised that the majority of the board refused to follow the opinion of the attorney general. After due consideration of the facts it '\\as apparent that should the opinion of the attorney general be disregarded and the illegal returns counted, it would be a flagrant violation of the Australian ballot law, which had done so much to purify the elections of the Territory, and would bring the law into discredit and disreiDute and open wide the door for frauds at subsequent elections in the Territory. It was therefore decided at a conference of Democrats at Juneau tt.at the circumstances warranted an appeal to the district court for a writ of man- damus against the canvassing board. This action was taken and the court gave an opinion upholding the opinion of the attorney general. In due course of time the certificate of election was issued to me. I left inunediately after getting the certificate in order to be here, if possil)le, at the opening of the special ses- sion of Congress. I did not reach hero until the day after Congress had con- vened, when I took my seat in the House of Representatives ajid was s^\•orn in as the Delegate from Alaska. I wish to deny emphatically the charge of contestant herein that the court proceeding was " an agreed case, a collusive proceeding." It was alisolutely nothing of the kind, but was in every sense a fair and honest and just proceed- ing initiated upon my right as a candidate before the canvassing board and as a citizen of the Territory of Alaska and instituteii to uphold the sanctity of the Australian ballot and in the interests of clean elections, and the law of the Territory. Contestant herein claims he was given no om^ortunity to be represented before the court. The proceedings show he was given every opportunity and invited to appear. The proceedings were held in the capital city of Juneau and the contestant was in close touch with all the proceedings. The legislature was about to convene and many of the contestant's closest friends and strongest supporters were present, not only those residing at Juneau, but from other parts of the Territory. Mr. John Rustgard, an i\h\e attorney of Juneau, who had during a part of the campaign been the campaign manager of the contestant and one of his strongest supporters throughout, acted as amicus curijie and had presented the case of contestant in the strongest manner possible. The opinion of the court was rendered purely upon the facts and the law speaks for itself. In connection with the certified photographic copies of the registers from these voting precincts in the Bristol Bay section. I wish to state tliat tliey are offered for the purpose of showing that the registers of elections and the other election material was duly received at those precincts. The official l>allots pre- pared by the clerk of the court in that division were sent at the same time as WICKEESHAM VS. SULZER. 383 these other documents. If they were not received at these precincts, the elec- tion judges, under the mandatory provision of the election law, should liave accompanied the election returns to the canvassing board with a certificate show- ing that they had not been received, and why they had not been received, if possible. This certificate failed to accompany such returns and was the reason for the opinions of the attorney general and the court in instructing the can- vassing board that the returns must be rejected. I also wish to call attention to the fact that these photographic copies of the registers show that many of the signatures are in the same handwriting, and also that numerous crosses after the names of the various voters indicate that the voters were illiterate; and the contention is made that many of the voters in these precincts were uncivilized Indians who were unqualified to exercise the right of suffrage ; and in regard to that the testimony which will be taken in these various precincts will more fully elaborate it. Mr. Elliott. All this, as I understand it, is to be passed on in the hearings anyhow — Mr. Sulzer's statement — and he |imply made the statement of his own knowledge and understanding. I do not think I want to ask him any ques- tions, because the attorneys will later propound such interrogatories as they may deem proper. cha.s. a. sxjlzeiv United States, District of Columbia, ss: I, Sebe Newman, notary public within and for the District of Columbia, hereby certify that in pursuance of the attached notice to take depositions in the contested-election case of James Wickersham v. Charles A. Sulzer, in the office of .James T. Lloyd, Room 70S, Woodward Building, Washington, D. C, on .July 26, 1917. at 10 o'clock a. m. of that day Charles A. Sulzer appeared, was first duly sworn and tfien testified as above set forth, and the said testi- mony was reduced to writing and subscribed to by the said Charles A. Sulzer in my presence. Witness my hand and seal this 26th day of July, 1917. [seal,] Sebe Newman, Notary Public, D. C. My commission expires September 4, 1917. letter from governor to attorney general. Territory of Alaska, Governor's Office, Juneau, February 16, 1911. Hon. George B. Grigsby, , Chief Counsel, Juneau, Alaska. Dear Sir : I am submitting herewith, for your consideration and opinion, certain questions that have arisen as a result of the canvass of the election returns of the general election held in the Territory of Alaska on November 7, 1916, by the Alaska canvassing board, consisting of the governor, the surveyor general, and the collector of customs. For your further information, I desire to state that at a meeting of the canvassing board this morning it was unani- mously decided to submit these questions to you and ask for an opinion thereon as soon as you shall find it practicable so to do. Questions submitted and upon ivhich an opinion is desired by the canvassing hoard. 1. Where judges of election failed to execute oath. 2. Where one judge swore the other two, but was not himself sworn. 3. Where all three judges signed oath form, but no one signed the jurat. 4. Where all three judges signed oath form, but no one signed the jurat. 5. Where all three judges signed oath form, and two of them signed the jurat. 6. Where no registration book was used. 7. Where registration book was used, but names of voters were written therein by member of election board instead of by the voters themselves. S. Where registration book was not certified by election board. 9. Where but one judge signed certificate to registraton book. 10. Where no register of voters was used in addition to the registration book. 11. Where election board did not make a duplicate return or certificate of the election and forward same to the clerk of the district court. 384 WIOKERSHAINI VS. SULZEH^^ 12. Where (as in the second division) no onths of election officers were with the returns sent to tlie governor's office, but clerk of court claims to have fur- nished oath forms to all boards and that their oaths are on file in his office. 13. Where election board did not sign the certificate of result in back of register or registration book. 14. Where election board did not fill in the certificate of result nor sign same. 15. Where only record of result is the tally sheets sent in by the board, only one of which is certified. ' 16. Where unofficial ballots were used and no explanation made by election board as to why they were used. 17. Where sample ballots were used (furnished by the clerk ©f the court) instead of the official ballots, and no explanation given. 18. Where " worker's ballots " were used instead of the official ballots, and no explanation made by election board. 19. Where " worker's ballots " 'wgre used instead of official ballots (the ballots used bearing the name of a political party), and explanation made by election board as to their use. 20. Where election returns are in. but canvassing board has not received certified copy of commission's order and notice of election. 21. Is chapter 25, Session Laws of 1915. valid? 22. In what respects does chapter 25, Session Laws of 1915, change the pro- cedure of elections in the matter of a duplicate register of voters, duplicate return by election boards, certification of returns, etc., as that procedure was outlined in the act providing for the election of a Delegate to Congress? Yours, very truly, J. F. A. Steong, Governor, Chait%an of Canvassing Board. Juneau, Alaska, Febriiary 19, 1911. Hon. J. F. A. Strong, Governor and Chairman of Canvassing Board, Juneau, Alaska. Sir : I have your communication of February 16, 1917, submitting to me certain questions upon Avhich an opinion is desired by the canvassing board now engaged in canvassing the returns of the general election held in the Territory of Alaska on November 7, 1916. Among the questions submitted are the following, which I deem of sufficient importance to make the subject of a separate opinion. 16. Where unofficial ballots were used and no explanation mad3 by election board as to why they were used. 17. Where sample ballots were used (furnished by the clerk of the court) instead of the official ballots, and no explanation given. 18. Where "worker's ballots" were used instead of the official ballots, andi no explanation made by election board. These questions may be considered together, as there is no difference between the irregularities in each, there being no distinction between a case where worker's ballots or sample ballots were used and one where any other form of unofficial ballots were used. The case of Boyd v. Mills (53 Kans., 594), makes a distinction where sample ballots are used,' but in view of the mandatory provisions of the statutes hereinafter discussed, I am of the opinion that such distinction does not exist under the laws of Alaska. The returns from the precincts where the above irregularities occur, consist of the certificates of the result of the election, the register of voters, and the ballots cast. These returns were propei'ly sealed up and mailed to the governor of Alaska. It appears, however, on an examination of these returns by the canvassing board, that the ballots used were not the official ballots provided for by the act of the Territorial legislature of April 27, 1915, chapter 25, Laws of Alaska, 1915, but were prepared by the voters, or some person for them, and failed in practically all essentials to conform to the style of ballot prescribed by the act. In other words, in the precincts in question there was a total disre- gard of the proAisions of the legislative act. The Territorial act above referred to provides in substance that the clerks of the district court in each judicial division shall prepare the ballots for use in their respective divisions in all election. Then follow certain directions as to the style of the ballot, the color ■^vICKEESHAM VS. SULZEE. 385 and dimensions of the paper to be used, tlie provisions for blank spaces for the insertion of names of candidates not printed upon tlie ballots, and other pro- visions common to the Austrialiau ballot law. Section 21 of this Territorial act provides as follows : " That in any precinct where the election has been legally called and no official ballots have been received, the voters are permitted to write or print their ballots, but the judges of election shall, in this event, certify to the facts w^hich prevented the use of the official ballots, which certificate must accompany and be made a part of the election returns." All authorities are agreed that the controlling purpose of the Australian ballot law is to secure a secret ballot, to the end that the voter may fully and freely vote for his choice of candidates uninfluenced by threats or intimi- dation, and that corruption of his vote may be prevented. There is a great confusion of authorities as to whether such laws are to be construed as manda- tory in all respects, or merely directory, some courts going to the extreme in holding the ballot legal, though not in statutory form, being inclined in the absence of proof of fraud, to subordinate the requirements of the statutes to the ascertaining of the intention of the voter and the will of the majority. This view of the law is concisely expressed in the case of Horsefall et al. v. School District (143 Mo. App., 545), as follows: " We think it may now be said to be the established rule in this State, as it is generally in other jurisdictions, that when a statute expressly declares any particular act to be essential to the validity of an election, then the act must be performed in the manner provided, or the election will be void. Also, if the statute provides specifically that a ballot not in a prescribed form shall not be counted, then the provision is mandatory, and the courts will enforce it ; but if the statute merely provides that certain things shall be done, and does not prescribe what results shall follow if those things are not done, then the pro- viion is directory merely, and the final test as to the legality of either the election or the ballot is whether or not the voters have been given an oppor- tunity to express, and have fairly expressed, their Avill." The foregoing rule has been applied in many cases where the ballots provided by those whose duty it was to prepare them did not strictly conform to the statutory provisions. In some of the cases the ballots were only slightly irregular and there is a hopeless confusion of authorities as to what departui'es from the statutory requirements are, and what are not, fatal to the validity of the ballots. I have been unable to find any case, however, holding the votes legal where the use of official ballots was entirely dispensed with. The effect of applying the rule announced in Horsefall v. School District to the case before this board, where no official ballots were used at all, would be to establish a precedent encouraging an absolute disregard by both voters and officials of the provisions of the law as to the form of the ballot. The Territorial act, as before stated, directs that the clerk of the district court shall prepare the ballots for use in all elections, and it prescribes the form of the ballot. It does not in express terms provide that none but the official ballots shall be counted. It does, however, so provide by implication, for section 21 of the act, quoted above, declares when and under what circum- stances other than the official ballots may be used. By the common rule of construction, the well-known maxim. " expressio unius est exclusio alterius," applies here, and the fact that the legislature has expressly declared that under certain circumstances other than official ballots may be used clearly shows an intention that they shall not be used except under the circumstances detailed. Even conceding the Horsefall case to express the true rule, our statute would nevertheless be construed as mandatory. The Horsefall case, however, is not supported by the best authority. Con- sidering the purpose of the Australian ballot law, it is plain that its object would be defeated if the directions as to the preparation and form of the ballot were not regarded as mandatory. The employment of express words is not always necessary to give a law a mandatory character. The following from the case of Board v. Dill, 110 Pacific, 1107, a case involv- ing questions similar to those here discussed, clearly expresses the true rule. After reciting the facts, the court states : " By this it will be seen that we are again confronted with the eternal moot of whether an election statute is mandatory or directory. The perpetuity and virtue of popular government can only be secured and maintained by providing 13289—17 25 386 WIGKERSHAM VS. SULZER. for the independence of the electors upon whose consent and will it exists. Widespread charges of improper influences, bribery, and corruption committed on the occasion- of elections in many of the States of the Union bringing in their wake defeat of the popular will and success to the corrupt schemes of design- ing men, brought about the election reform Ivuowu as the Australian ballot system. Elections prior to it were held by an open-ticket system, under which secrecy was almost if not quite impossible, and dependent or corrupt voters were equally at the mercy and under the control of those who would use them for corrupt ends. " The court of appeals of New York, in the case of People v. Board of County Canvassers, 129 N. Y., 395, 29 N. E., 32V, L. R. A., 624, says : " ' We know that the principal mischief which the statute was intended to suppress was the bribery of voters at elections, which had become an intoler- able evil, and this was to be accomplished by so framing the law as to enable, if not compel, the voter to exercise his privilege in absolute secrecy. ' " The supreme court of Michigan in the case of Deti-oit v. Rush, 82 Mich., 582, 46 N. W., 951, 10 L. R. A., 171, says : " ' The secrecy of the ballot is the great safeguard to the purity of elections. The vote by ballot implies secrecy. This secrecy should not be confined to the time of depositing the ballot. It should accompany the voter through all the steps provided for the preparation of his ballot. Only in this way can he be freed from all intimidation, improper influences, reproach, and animadversion. When all knowledge of how he voted is the voter's own secret, unless he chooses to divulge it, he is fully protected, and a free and honest vote will very uni- formly be the result.' " The supreme court of appeals of Virginia in the case of Pearson v. Bruns- wick County, 91 Va. 322, 21 S. E. 483, says : " ' The object is to relieve the voter from every influence inimical to a free and deliberate exercise of the right of suffrage, to free him from all solicitation and annoyance, and to leave him a perfectly free agent to vote as to him seems best. These provisions seem to be not only reasonable, but well adapted to secure the end in view, so far as the voter is concerned who is able to prepare his own ballot. He goes to the judges, he receives an official ballot printed by aiathority of the State, upon which is found every office to be filled and every candidate for that office, whose name has been filed in accordance with the requirement of the law, and he retires to a booth where he is curtained off and secluded from all the world. No eye can see him and no ear can hear him ; no evil agency can approach him ; and, with these environments, he pre- pares his ballot, folds and delivers it to the judge, who, in his presence, places it in the ballot box. * * * The general scheme of the law is to secure the independence of the voter by secluding him within an isolated booth, sur- rounded by a neutral zone, within which none may enter save those charged with conducting the election.' " Thus it is seen that the general scheme of the system is to secure the inde- pendence of the voter by requiring him to cast his vote in secret. " Secrecy is the fundamental underlying primary essential of the system, and is the one element and condition which, paramount to all others, can not be . destroved without destroying the reform intended and reestablishing the evils it was designed to correct. Statutes which make, even incidentally, for its preservation and inviolability are seldom directory, and without exception, where the language will admit of it, are held to be mandatory." In Tuntland v. Noble, 138 N. W., 292, the court disapproves of the opinion of the Horsefall case, and condenses what seems to be the weight of authority, as follows : " What seems to us to be the true rule, is laid down in the following from the opinion of the court in the case of Perry v. Hackney, 90 N. W., 485 : " ' The statute under consideration is then not in terms mandatory, but it is well settled that the employment of express words is not ahya^ys necessary to give it that character; where the aim and purpose of the lawmaking power would be plainly defeated if the command to do the thing in a particular man- ner did not imply an inhibition to do it in any other, no doubt can be main- tained as to the mandatory character of the statute.' (23 Am. & Eng. Enc. of Law, pp. 453, 454, and cases cited.) " The proper test for distinguishing mandatory from directory provisions ot the election laws is well stated by the Supreme Court of Indiana, in Parvin v. Weinberg, 30 N. E., 790, as follows : " ' If a statute expressly declares any particular act to be essential to the validity of an election, or that its omission shall render the election void, the WICKERSHAM VS. SULZER. 387 courts whose duty it is to enforce the law as they find it must so hold, whether the particular act in question goes to the merits or affects the result of the election or not ; for such a statute is mandatory and the court can not enter into the question of its policy ; on the other hand, if a statute simply provides that certain things shall be done within a particular time or in a particular manner, and does not declare that their performance shall be essential to the validity of an election, they will be regarded as mandatory if they affect the merits of the election, and as directory only if they do not affect its merits.' " We also approve the following from the case of Jones v. State ex rel. Wilson 55 N. E., 229. ,- " 'All provisions of the election law are mandatory if enforcement is sought before election in a direct proceeding for that purpose, but after election all should be held directory only, in support of the results, unless of a character to affect an obstruction to the free and intelligent casting of the vote, or to the ascertainment of the result, or unless the provisions affect an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of an election.' " Applying the law as enunciated in the opinion quoted, many irregularities in an election proceeding including deviations from the form of official ballots, may be disregarded as not affecting the merits of an election and not affecting an essential element of the election, being matters of form rather than of substance. The courts go a great way to sustain the validity of elections, the conduct of which is in many respects far from compliance with the regulations imposed by statute. But when we consider the object of the Australian ballot law, it is at once apparent that a total disregard of its provisions would entirely defeat the purpose of the lawmakers. Slight departures from those directions prescribed probably would not be vital, but to entirely dispense with them, would cer- tainly " both affect the merits and affect an essential element of the election," that is, the element of secrecy, which is the primary object sought to be at- taind by the law. " This being true, a court will not investigate to ascertain whether or not the disregarding of this ' essential element,' going as it does to ' the merits of the election,' did in fact in a given case affect the apparent result of the election." (Tuntland v. Noble, 138 N. W., 292.) In other words, it is enough that its necessary tendency would be to affect the merits of the election. The following also expresses the general rule : " The statutes usually prescribe the size and form of the ballots and the kind of paper on which they are to be printed and prohibit any marks, figures, or devices upon which one can be distinguished from another. These statutes, being designed to preserve the secrecy of the ballot and to prevent fraud, intimi- dation, and bribery, will generally be considered mandatory, and this will be so in all cases where the statutes provide that a ballot varying from the require- ments of the law shall not be counted. But if this provision is lacking, while it is the duty of the election officers to refuse to receive the ballots if the deviations from the law are manifest, if they have been received they should not be rejected if the variations are but trifling. It is necessarily impossible to lay down any general rule by which to determine what is a material variation from the required form, within the meaning of said statutes, and each case must be determined from its own facts and circumstances." (Am. & Eng. Enc, 2d Ed., vol. 10, p. 726.) This board is not confronted with a case where there is a slight deviation from the regulations prescribed by law, but where there is a total disregard thereof. My conclusion, therefore, is that the Alaska Territorial act is mandatory in so far as it relates to the manner of preparation and form of the ballot. It follows, therefore, that ballots cast not prepared by the proper officials and sub- stantially conforming to the statute are illegal. In the precincts in question there was a total failure to comply with the provisions of the statute, and the ballots cast in these precincts therefore are invalid and can not lie counted unless some other provision of the statute authorizes their being accepted as valid. It therefore remains to consider the application of section 21 of the territorial act to the question submitted. Again quoting section 21 : " That in any precinct where the election has been legally called and no official ballots have been received the voters are permitted to write or print their ballots, but the judges of election shall in this event certify to the fact 388 WICKERSHAM VS. SULZEE. which isrevented the use of the official ballots, which certificate must accom- pany and be made a part of the election returns." The ballots included with the returns from the precincts in question are not, and do not purport to be, the official ballots, but were prepared by the voters themselves or by some person for them. This by section 21 is allowed to I»e done " vrhers- no official ballots have been received." Section 21 is a proviso creating an exception from the operation of the statute. Such provisos must be strictly construed. This is the general rule. (36 Cyc, 1162, and cases cited.) Construing the election act as mandatory, the law of Alaska, which is to be applied to the case under consideration, is in effect as follows : " None but official ballots shall be voted except in precincts where no official ballots have been received." Section 21 further provides that in the event no official ballots have been received the judges of election shall certify to the facts wiiich prevent the use of the official ballots, which certificate must accompany and be made a part of the election returns. The purpose of the latter provision is apparent. Without the certificate of the judges the canvassing board would have no means of ascertaining the reason the official ballots were not used. It has been suggested that the very fact that no official ballots whatever were used in the precincts in question would give rise to the i3resumption that none were received. There is no such legal presumption. Very possibly this might have been the case, pos- sibly it might not have been. To assume the existence of such a presumption would entirely nullify the act and dispense with the necessity of using official ballots at all. The truth is, there is no presumption of fact one way or the other. The nonofficial ballot is prima facie illegal and can not be counted except iTuder certain circumstaiic'es, to wit, where no official ballots have been received. On the face of the returns from the precincts in question the ballots cast are all illegal, because not oflicial ballots. The canvassing luiard has been furnished with no evidence at all of the existence of any legal reason why official ballots were not used. The law pro- vides but one method of furnishing evidence of such reason, and that is by the certificate of the judges which " must accompany and be made a part of the returns." This board has no such certificate before it, nor any other evidence of the reason for the use of nonofficial ballots. The word " must " is ordinarily to be construed as imperative and manda- tory, and always to be so construed unless the intention of the legislature is apparently to the contrary. (36 Cyc, 1160.) No reason can be conceived for construing it otherwise in the above statute. The word " must " used in the statute necessarily implies certain consequences if the statute is not complied with. The implication in this case is, that unless a certain certificate accompanies and is made a part of the returns, where nonofficial bailots are used, they must be rejected. Whether or not the facts were, that no official ballots were received in the precincts involved, is a ques- tion which can not be inquired into by this canvassing board, as the law pre- scribes what shall be evidence of this fact, so far as the canvassing board is concerned, and there being no evidence on the subject before the board, the ballots must be considered illegal and the vote rejected. Whether or not the vote might be counted in a contest before the proper tribunal, in case legal evidence was received of the existence of circumstances which the statute says legalizes the use of nonofficial ballots, is a question with which the canvassing board is not concerned. Undoubtedly, if the returns were submitted in their present form, they would be rejected by any tribunal having jurisdiction to try a contest. This situation must not be confused with cases where the election judges failed to send all the documents, such as ballots, tally sheets, register of voters, oaths of judges, necessary affidavits, etc., which constitute election returns. Mere omissions of this kind, by the great weight of authority, do not neces- sarily vitiate the returns. The present situation is diiferent. Here is no failure to send any certain document which is by law a part of the returns. In this case there is no reason to assume the existence of the certificate lack- ing. There is no reason to assume the existence of the reasons which would make the certificate a necessary part of the returns. Assuming the existence of the reasons and of the certificate, still the statute requiring the latter to accompany the returns would have to be construed as mandatory. But we can assume neither. We have returns complete in all respects, showing the vote prima facia illegal and void on account of the use of the illegal ballots. WICKESSHAM VS. SULZEE, 389 Ex parte Riggs, 29 S. E., 645, is similar to the case before this hoard. In the Riggs case the canvassing board rejected certain ballots not conforming to the statute. The court said : " The lawmaking power having declared that voting shall be by ballot, and having prescribed the form of such ballots, and, what is more important, hav- ing in nnmistakable terms forbidden a ballot which is not in the prescribed form from being counted, we can not hold that the board of State canvassers committed any error in obeying this express mandate of the body instrusted with the power to make the laws. We have neither the power nor the dispo- sition to inquire into the wisdom or policy of such a law, for ' ita lex scripta est ' is sufficient for us and precludes further inquiry." To be sure, in the Riggs ease the South Carolina statute provided expressly that no ballot of any description other than that provided by law should be counted, but we have already reached the conclusion that notwithstanding the absence of this express provision our statute is none the less mandatory, and, once conceded to be mandatory, it inhibits the use of nonofficial ballots just as effectively as if it in express terms stated that they could not be counted. The Riggs case, abo^'e quoted, is therefore exactly in point. Section 403 of the Compiled Laws of Alaska provides as follows : "The governor, surveyor general, and the collector of customs for Alaska shall constitute a canvassing board for the Territory of Alaska to canvass and compile in writing the votes specified in the certificates of election returned to the governor from all the several election precincts as aforesaid." The question has been raised as to the duty of the board to consider any- thing else in making their canvass than the election certificates referred to in the above section. Section 402, Compiled Laws of Alaska, provides what shall constitute the election returns. The ballots are not, as in many States, separately sealed up, but are inclosed in the same envelope with the accompanying documents. All these documents taken together constitute the election returns. The board meets for the purpose of canvassing and compiling the vote specified in th^ cer- tificates. To " canvass " has been defined by Webster to mean " to examine thoroughly, to search or scrutinize." The Standard Dictionary defines the word " to examine searchingly, go over in detail, scrutinize, sift, as to canvass the vote in an election ; an official scrutiny, as a canvass of votes at an election." A canvass of an election includes not only the counting of the votes by the inspectors, but the record of the count by the poll clerks upon the tally sheet, so that the tallv sheet is a substantial part of a canvass. (In re Stewart, 48 N. Y. Supp.. 957.) A canvass is l)ut a count of the ballots, a convenient and expeditious method of determining the choice of the people as disclosed by the ballots. As between the ballots themselves and a canvass of the ballots, the ballots are controlling. (Hudson V. Solomon, 19 Kans., 177.) Canvass as applying to an election would seem to impose an obligation be- yond that of merely counting the ballots and comparing the statements of the managers. Canvassing implies searching, scrutinA^, investigation, examination. (State V. Nerland, 7 S. C, 246.) Canvass as applied to election returns does not necessarily mean to count the ballots. To canvass the returns and to canvass the vote are frequently rised synonymously. (People v. Town of Sausalito, 39 Pac, 937.) It may be conceded that the almost universal rule is that a canvassing board can not go behind the returns to look for illegalities or fraud in the conduct of the election, nor should it consider trifling defects in the returns or slight omissions of the returning officers. The duties of canvassing boards are purelj'' ministerial ; they hve to consider only what appears on the face of the returns. Even in case of doubt as to the legality or illegality of certain ballots, they are not to go behind the certificate of the judges of election. But when the returns show on their face that all of the votes in a given precinct are beyond question illegal, the ballots having been prepared with total disregard of the provisions of the election law, they are bound to reject them, AA'here the certificate is lacking which would legalize such ballots. Sec- tion 402 of the Compiled Laws, designating what shall constitute returns, must be construed together with section 21, chapter 25 of the Session Laws of Alaska, 1915, which latter section amends section 402 to the extent of making the cer- tificate referred to therein an essential part of the returns. Ex parte Riggs, 29 S. E., 645, cited above, is authority for the canvassing board to reject returns where the ballots are illegal. It was also held in Mississippi that where the ballots which Avere required to accompany the re- 390 WICKEESHAM VS. SULZER. turns shoM^ed upon their face that they were illegal the canvassers might reject them in the count. (Oglesby r. Sigman, 58 Miss., 502.) This case seems to be exactly in point, as under the laws of Alaska the bal- lots must accompany the return and are not separately sealed. In this case the returns from the precincts where the irregularities are such as described in questions 16, 17, and 18, show prima facia an absolute total disregard of the Territorial act in the use of the illegal ballots not explained by any evidence of any kind, and you are advised that they much be rejected. The burden should be upon him who relies upon such votes to furnish the evidence establishing their validity before the proper tribunal. In the mean- time it is the duty of the canvassing board to give effect to the will of he majoriy who have complied with the law by delivery of certificates of election to the candidates receiving a majority of legal votes. Respectfully, Geoege B. Grigsby, Territorial Counsel. REPLY OF ATTORNEY GENERAL TO GOVERNOR. Juneau, Alaska, February 19, 1917. Hon. J. F. A. Strong, Governor and Chairman of Canvassing Board, Juneau, Alaska. Sir: I have your communication of February 16, 1917, submitting to me for my opinion certain questions arising out of irregulaiities in the retui*ns of the general election held in the Territory of Alaska on November 7, 1916. Three of the questions prodounded by you I concider of sufficient importance to make the subject of a separate opinion. I herewith submit my conclusions with respect to the other questions submitted by your board. 1. Where judges of election failed to execute oath. 2. Where one judge s^A'ore the other two, but was not himself swprn. .3. Where all three judges signed oath form, and one signed the jurat. 4. Where all three judges signed the oath form, but no one signed the jurat. 5. Where all three judges signed oath form, and two of them signed the jurat. The failure of election judges to execute oath is an immaterial irregularity in the conduct of the election which does not affacet the result, the courts unanimously holding that notwithstanding the failure of these officials to take oath and otherwise qualify, nevertheless if they perform the functions of judges their acts are leaal as the acts of de facto officers. (Whipley v. McKune, 12 Cal., 362; Sprague v. Norway, 31 Cal., 173; Sanders i;. Leeks, 142 Mo., 255; Hevfron r. Mahoney. 9 Mont., 497 ; Stimson v. Sweeney, 17 Nev., 309 ; People v. Cook, 59 Am. Dec, 451.) 6. Where no registration book was used. 7. Where registration book was used but names of voters were written therein by member of election board instead of by the voters themselves. 8. Where registration book was not certified by election board. 9. Where but one judge signed certificate to registration book. I assume that this refers to the registration book prescribed by chapter 2.5 of the Session Laws of Alaska, 1915. If so, my opinion is that the failure to use the registration book was not an irregularity vital to the legality of the election. The registration provided for by the act of the legislature, chapter 25, Session Laws of Alaska, 1915, is not a registration prior to the election and not one that affects the qualifications of voters, but simply a method provided for the conduct of the election and to prevent illegal voting by making any false statements to the person offering to vote, with regard to his qualifications, punishable by fine or imprisonment. That part of the statute referring to registration is not mandatory in form, and. as it does not relate to matters that are essential elements or affect the merits of the election, it is probably to be considered directory only. (Bowers v. Smith. 17 S. W., 762.) Furthermore, the provisions of chapter 25 relating to registration are not strictly within the scope of the act as expressed in its title. This, however, is the subject of another question. 10. Where no register of voters was used in addition to the registration book. By section 397 of the Compiled Laws of Alaska, the two judges of election who act as clerks shall each keep a correct duplicate register and enter therein the names of the voters and the fact that they have voted, etc. Section 22 of chapter 25 of the Session Laws of Alaska, 1915, provides that the clerk of the court shall furnish each polling place with a book, known as the registration book, in which each voter shall sign his name before voting. The WICKEKSHAM VS. SULZER. 391 provisions of section 22 of chapter 25 do not do away witli the necessity for the register of voters required by the provisions of section 397 of the Compiled Laws of Alaslia ; but in case of a failure of the election clerks to keep such register the registration book required by the legislative act, if containing the names of the voters, would be held sufficient compliance with section 397, and probably be held equivalent to said register required by that act. The fact that the same is not in duplicate is an immaterial regularity and would not affect the result of the election. I therefore advise you that in cases where the only register of voters is in the registration book provided for by the legislative act the returns, if regular in other respects, should be canvassed and the votes counted. 11. Where election board did not make a duplicate return of certificate of the election and forward same to the clerk of the district court. You are advised that this omission is immaterial, except in case of loss of the returns mailed direct to the governor, the evident purpose of this provision being to prevent the disfranchising of voters on account of loss of the returns. 12. Where (as in the second division) no oaths of election officers were with the returns sent to the governor's office, but clerk of court claims to have fur- nished oath forms to all boards, and that their oaths are on file in his office. This is an immaterial irregularity, as explained with reference to the first five questions. 13. Where election board did not sign the certificate of result in back of register or registration book. 14. Where election board did not fill in the certificate of result nor sign same. ^ Section 402, Compiled Laws of Alaska, provides that the election board at each polling place shall, after canvassing the votes, make out in duplicate a certificate of the result of said election, specifying the number of votes in words and figures cast for- each candidate, etc. This section does not provide that this certificate of the result must be in the back of the register or registration book or be in any book. There must, however, be some certificate substantially conforming to section 402 or there would be no authentication of the returns or declaration of the result of the election. If such certificate does not accompany the returns, they can not be counted, unless a substitute has been received from the clerk of the court, or unless such defect is cured by the certificate being received before the canvass- ing board adjourn. If received at any time before the canvassing board adjourn, it may be accepted and the returns canvassed, or if received with the returns but not signed, and the judges appear and offer to sign the same, they should be permitted to do so, this being simply a matter of the authenticity of the- returns and a statement of the result. There is no distinction between questions 13 and 14, as in both cases there was a failure of the board to sign the certificate, consequently there was no certificate. The authorities generally hold that this certificate is indispensable. (People r. Nordheim, 99 111.. .553: Perry v. Whittaker, 71 N. C. 475; Simon v. Durham, 10 Oreg., 52; Opinions of Justices, 68 Maine, 582; Lawrence County v. Schmaulhauses, 123 111.. 321.) 15. Where only record of result is the tally sheets sent in by the fcoard, only one of which is certified. If properly certified, so as to substantially comply with the requirements of section 402, Compiled Laws of Alaska, and clearly constituting a declaration of the result and authentication of the returns, I have no doubt it would be sufficient even though not in duplicate. The test is whether the returns are sufficiently authenticated so that the canvassing board can determine that they are genuine returns. If the return lacks these requisites, it should either be corrected if an opportunity is offered, or if not corrected, should be rejected. 16. 17, and 18. These question are made the subject of another opinion. 19. Where "worker's ballots" were used instead of official ballots (the ballots used bearing the name of a political party), and explanation made by election board as to their use. Where the explanation made by the election board is in compliance with section 21 of chapter 25, Session Laws of iVlaska, 1915, the ballots should be counted. The fact that the ballots bore the name of a political party is no reason for rejecting them. W^here the law permits the voter to use other than official ballots, they do not have to be in the form prescribed by the legislative act, but are sufficient, if they substantially comply with the congressional act, and under the congressional act distinguishing marks or party designation would not be a material irregularity. There is no reason whatever for reject- 392 WICKEESHAM VS. SULZER. in.a- the ballots on account of the party desijiiiation, and no authority can be cited in support of their rejection. 20. Wliere election retunis are in, Imt canvassing- board has not received certified copy of commissioner's order and notice of election. Thfe certified copy of commissioner's order and notice of election is not a part of the return, and the failure of the commissioner to forward the same to the governor of Alaska, as required by section 396 of the Compiled Laws of Alaska, does not prevent the canvassing of the returns if the canvassing board is satisfied from other information that the returns are from regularly established precincts. 21. Is chapter 25, Session Laws of 1915, valid? Chapter 25. 1915 Session Laws, is A'alid in so far as it provides for a form of official ballot and matters germane to such sub.iect. In other respects it is of at least doubtful validity for the reason that the organic act provides that no law shall embrace more than one sub.1ect, which shall be expressed in its title. The title to chapter 25 is " An act to provide official ballots for elections in the Territory of Alaska." 22. In what respects does chapter 25, Session Laws of 1915, change the procedure of elections in the matter of a duplicate register of voters, duplicate return by election boards, certification of returns, etc., as that procedure was outlined in the net providing for the election of a Delegate to Congress? Chapter 25, Session Laws of 1915. does not change the procedure of elections in the matter of a duplicate register of voters, duplicate returns by election boards, certification of return, as that procedure was outlined in the act pro- viding for the election of a Delegate to Congress, except tJi'^t by section 21 of chapter 25, a certain additional certificate is under certain circumstances made an essential part of the returns. This is the certificate required where official ballots are not received in the precinct. Chapter 25 is valid as to all provisions prescribing a form of official ballot, and is valid as to the provisions of section 21 thereof. Respectfully, George B. Gkigsby, Territorial Counsel. I certify thnt the foregoing are true and correct copies of a letter from Gov. J. F. A. Strong, governor of Alaska, to myself, dated February 16. 1917, request- ing an opinion on certain election matters referred to therein and of my opinion on certain of said questions in response to said letter. Geoege B. Gkigsby. Exhibit 7. United States of America, Territory of Alaska, third rlirision, -sss; I, the undersigned clerk of tlie district court for the Territory of Alaska, third division, do hereby certify that the attached is a full, true, and correct photo- graphic copy of the original registration book of the Chogiung voting precinct, Bristol Bay recording district, third division. Territory of Alaska, as the same appears on file and of record in my office. In testiipony whereof. I have subscribed my name and affixed the seal of the said court at Valdez, Alaska, this 27th day of April, 1917. [seal.] Arthur Lang, Clerk. By Chas. a. Hand. Deputy. No. of No. of persons register- ing. Names of persons registered. persons register- ing. Names of persons registered. 1 Chas. Mulkeit. 15 Ivan (his x mark) Ungak. 2 Nick Patterson. 16 Balanka (his x mark) Larson. .3 Adolf Osterhaus. 17 Mrs. H. J. Paulsen. 4 Lars D. Nielsen. 18 Mrs. Katherine R. Nash. 5 Louis Hansen. 19 Ballasora (his x mark) Gland. 6 August Hoseth. 20 Ivan (his x mark) Cheronkok. 7 Molly Osterhaus. 21 Brokojsi (his x mark) Iwkak, 8 Preston H. Nash. 22 Simion (his x mark) Anmuksok. 9 H. J. Polsev. 23 Wassilli (his x mark) Cooktune. 10 W. A. Borland. 24 Ludo\ick Egeland. 11 Theodore Hersey. 25 Simion (his x mark") Tretiakoff. 12 Aneska Hansen. 2G Wassilli (his x mark) Vetok. 13 Otto A. Larson. 27 George Lindstrom. 14 Constantino Tretiakoff. 28 Delia Lindstrom. WICKEKSHAM VS. SULZEE. 393 Exhibit S. f United States of America, Territory of Alaska, third division, ss: I, the undersignecl clerk of the district court for tlie Territory of Alaska, third division, do hereby certify that the attached is a full, true, and correct photo- graphic copy of the original registration book of the Afognak voting precinct, Kodiak recording district, third division, Territory of Alaska, as the same appears on file and of record in my office. In testimony whereof, I have subscribed my name and affixed the seal of the said court at Valdez, Alaska, this 27th day of April, 1917. [SEAL.] Aethub Lang, Clerk. By Chas. a. Hand, Deimty. No. of No. of persons register- Names of persons registered. persons register- Names of persons registered. ing. ing. 1 Ivan Derenoff (X). 32 Natalia SimeonofE. 2 Ernest Strickler. 33 Irene Nelson. 3 Simeon Berestoff (X). 34 Nicholai Boskofsky. 4 Ivan Alhoon (X). 35 Nastacia Kiligmen (X). 5 Afoney Malutin. 36 Paul Chechenofl. 6 Xenophont Gregoriofl (X). 37 Wm. Chechenofl. 7 John Taoshawk. 38 Alexis Chechenofl. 8 Logan Chanum (X). 39 John J. Folstad. 9 Kodion Malutin (X). 40 Charles W. Pajoman. 10 Maltey Agick. (X). 41 0. C. Badun. 11 Peter CheekenofC. 42 Louis Berg. 12 Temofey Nay a (X). 43 Arthur Marzan. 13 Julius Farsman. 44 Simeon Malutin. 14 Martin Lauren. 45 Wasele Apolon (X). 15 Peter Kauan. 46 E. Petellin. 16 Ivan Greg ori off (X). 47 Alfi-ed Nelson. 17 Gregory Yakonak (X). 48 Alexander Simeonofl. 18 Wasele Eshuvavak (Xj. 49 Mary Petellin. 19 Henry Wander. 50 Willie Leahy Abbert. 20 Chas. B. Gunderson. 5] Matrona Pajoman. 21 Michael Sussman. 52 Paul Nekraesofl (X). 22 John Yakonak. 53 Senophont Mahetin. 23 W. E. Baumann. 54 Horace Samuel Abbert. 24 Peter Chickenoff, jr. 55 Alexandra Nekrasofl (X). 25 Alexander Lukin (X). 56 Andrew Shunagan (X). 26 John P. Johanson. 57 Michael Boskofsky (X). 27 Tichon Sheratin. 58 Nick Anderson. 28 Alexey Knagin, sr. (X) 59 Theodore Gregoriofl. 29 John OrdofE. 60 Stephen Gregoriefl. 30 John Naumoff. 61 Nicholai Shangin (X). 31 Elia Knagin. 62 Sergay Sharotin. Exhibit 9. United States of America, Territory of Alaska, Third Division, ss: ^ I, the undersigned clerk of the district court for the Territory of Alaska, third division, do hereby certify that the attached is a full, true, and correct photographic copy of the original registration book of the Seldovia voting pre- cinct, Kenai recording district, third division. Territory of Alaska, as the same appears on file and of record in my office. In testimony whereof I have subscribed my name and affixed the seal of the said court at Valdez, Alaska, this 27th day of April, 1917. [seal.] Arthur Lang, Clerk. By Chas. A. Hand, Deputy. 394 WICKEESHAM VS. SULZER. No. of • No. of persons register- Names of persons registered. persons register- Names of persons registered. ing. ing. 1 Henry Logan. 44 John Aabenak. 2 Henry Ohlson. 45 Matilda A. Grieve. 3 Chaes Carlson. 46 Zakar (X) Chonkna. 4 James Phgbrom. 47 Fred (X) Jager. 5 Wm. Rohde. 48 Nick (X) Sakoloff. 6 Wm. (X) Lowell. 49 Jack Holland. 7 Christian Petersen. 50 Saverian (X) JakalofE. 8 S. Stofler. 51 W. A. Keller. 9 Axel Michelson. 52 Geo. P. Griffiths. 10 Andy Johnson. 53 Fred Sanke. 11 Mike Dolchok . 54 James Linder. 12 Semea Marlowe. 55 Tollak Ollestad. 13 W. J. McKeon. 56 Mrs. Mary Cleghorn. 14 Steve E. Sorokorikoff. 57 Mrs. Hattie Johnson. 15 G. M. Chambers. 58 Mrs. Sallie Bowen. 16 T. O. Perry. 59 Milo Hulburt. 17 Geo. D. Slayback. 60 Thos. Repetta. 18 John A. Nelson. 61 Mrs. Bogart. 19 Edward Jensen. 62 Mrs, Ritchie. 20 F. J. Cameron. 63 Chris. Spillum. U. S. Ritchie. 21 Peter C. Garlich. 64 22 Olga Holmstram. 65 Edw. 0. Dwyer. 23 P. F. C. Bellman. 66 Albert Fillmore. 24 Antone Dolchak. 67 F. D. Decker. 25 N. I. Grieve. 68 Minnie Cameron. 26 E. R. Bogart. 69 Elizabeth Herbert. 27 R. B. Markle. 70 Edward Carlson. 28 M. J. Doyle. 71 G. W. Mitchell. 29 Juanita Anderson. 72 G. B. Meyers. 30 Thos. Moore. 73 Lizzie (X) Black. 31 Die Skaar. 74 Irene Jacobson. 32 Albert Peterson. 75 Agnes (X) Barnes. 33 Samuel (X) Mercuroff. 76 Annie Christiansen. 34 H. M. Blake. 77 J. Christiansen. 35 Gregory (X) Fry. 78 Frank Brown. 36 Frederick Nelson. 79 Reuben Barnes. 37 Constantin (X) Lucko. 80 George R. King. 38 Gregory (X) Kalango. 81 Mrs. George R. (X) King. 39 J. A. Hart. 82 Jack Tansy. 40 R. N. McFadden. 83 Edw. Husby. 41 Albert Osness. 84 Barbara Husby. 42 E. I. Gruundsen. 85 Lizzie Ward. 43 Edward Hegner. Exhibit 10. united states signal coeps. Send the following message : Commanding General, "San Francisco, Cal. " Fort Gibbon, Alaska, " Novem