Volume 6 — Alaska Reports

This is an action to foreclose labor liens of Robert Benson and five others under the provisions of chapter, 13, Session Laws 1915. Th'e several claims amount to $2,234.50; attorney’s fees are demanded in the sum of $444, and the sum of $45 is sought to be recovered for the necessary expense of preparing and recording the lien claims, making an amount of $2,723.50, together with costs.

The .plaintiff in this action seeks to compel the defendants to deed to him an undivided one-third interest in and to the Mascot Bench placer mining claim, located in the Nulato mining and recording district. There is a' prayer that an accounting be had of the mining operations on the property and that the plaintiff recover one-third df the net profits. ' The trial of this action was had at Ruby, by the court without a jury, and was completed on the 24th day of August, 1917.

The petition of the Dexter Horton National Bank for an order of the court directing the receiver of the Washington-Alaska Bank of Nevada to pay to it the sum of $27,246.76, with interest thereon at the rate of 8 per cent, per annum from January 30, 1914, is submitted on the following agreed statement of facts: 1.

Criminal. George B. Morrison was on the 22d day of June, 1917, at a trial had before William D. Young, United States commissioner and ex officio justice of the peace in and for the Hot Springs precinct, Fourth judicial division, territory of Alaska, convicted of a violation of section 333 of the Compiled Laws of Alaska, and was thereafter sentenced to pay a fine of $50 and costs amounting to $23.55.

The plaintiff alleges in his complaint that prior to the month of February, 1915, he had acquired certain mining properties in the Fairbanks (now Tolovana) precinct, Fourth judicial division, and on or about the 14th day of February, 1915, gave to D. G. McCarty an option to purchase said properties for the sum of $10,000; that before the deferred payments fell due, and were paid, certain difficulties arose between the feaid McCarty and the defendant herein; that the…

Plaintiff, a foreign corporation, sues defendant for damages for breach of contract alleged to have been “entered into in writing by' and between plaintiff and defendant, wherein the plaintiff agreed with the defendant to buy of it, and the defendant agreed to sell to the plaintiff, and to deliver to it at Seattle, Washington,” a certain quantity of frozen halibut for a certain price f. o. b. ships tackle, Seattle — inspection to be made on arrival, and payment to be made in…

This is a suit on a bond given by the defendant Harry T. MaeLean, assistant postmaster at Iditarod, Alaska. The surety on the bond is the other defendant, the United States Fidelity & Guaranty Company.

<p>I. Mines and Minerals <&wkey;>49 — Adverse Possession.</p> <p>Plaintiffs discovered gold, marked tlie boundaries, recorded tbeir notices of location, and were in peaceful possession of mining claims prior to defendants. Held, they bad complied with tbe law and were entitled to possession of tbe claims.</p> <p>2* Adverse Possession &wkey;jll2 — Real Property.</p> <p>Tbe settled principles of law require courts to consider tbe true owner as constructively in possession of lands to wbicb be holds tbe title, unless they are in tbe actual hostile occupation of another under a claim of title.</p>

Plaintiff sues defendant for compensation under -the Workmen’s Compensation Law (Laws 1915, c. 71), for the death of . one Nicholas P. Crinis, alleging that she is the widow of said Nicholas P. Crinis, and that the latter “was in the employ of defendant, and was killed in an accident arising out of and in the course of his employment.” Defendant denies that said plaintiff is the widow of said decedent, and denies that decedent was one of its employees.

The following sketch shows the relative position of mining claims owned by plaintiff and defendants; plaintiff’s claims being shaded, to distinguish them from those claimed by the defendants: The plaintiff was _ one of the original discoverers of gold upon Chititu creek, in March, 1902, and located in his own name and has ever since owned and held claim No. 3 on Chititu, claim No. 11 on Chititu, claim No. 1 on Rex, and cláim No. 5 on White creek.

This is an action in equity wherein the plaintiff seeks to recover from the defendant an undivided one-half interest in the Gold Dollar association placer mining claim, located in the now Tolovana mining and recording precinct, and to compel an accounting by the defendant of all gold extracted therefrom by the defendant and his lessees.

in Bankruptcy. This is a contest between P. H. Fox, petitioning to be allowed a preference out of the proceeds of sale of the assets of' J. Minkove, bankrupt, and V. A. Paine, trustee of said bankrupt. The immediate question involved is whether or not the referee’s findings and order- of the referee should be sustained.

<p>1. Aliens <&wkey;68 — Citizens—Statutes.</p> <p>Petitioner was bom in 1859 in Nova Scotia, Canada. His parents died there when he was three years old, and he was taken into the family of one James M. Freeman to reside, and in 1876 came to the United States as a member of the Freeman family. He was never legally adopted by the Freemans, though he continued to reside with them and took their name as his middle name. In 1888 Freeman became a citizen of the United States, and in 1917 petitioner sought to become a citizen of the United States under section 3 of the Act of Congress of June 25. 1910, 36 Stat. 830 (U. S. Comp. St. § 4352), as one who had resided continuously in the United States during a period of five years next preceding May 1, 1910, who, because of misinformation in regard to his citizenship had labored under the impression that he was a citizen of the United States, etc. Meld, the petitioner was not within the statute, because he knew the facts at all times, and was not misinformed, and was not entitled to be made a citizen of the United States under that clause.</p> <p>2. Adoption &wkey;>l, 17 — Evidence.</p> <p>- Adoption of children was unknown to the common law of England. It exists only hy virtue of statutory law. The fact of adoption will never be presumed, but must be affirmatively proved by the person claiming its existence.</p>

Criminal. The indictment returned by the grand jury charges: “That the defendant the Northern Commercial Company, a corporation, duly organized and existing under and by virtue of the lawsi of the state of New Jersey, in the town of Fairbanks, Fairbanks precinct, Fourth judicial division, territory of Alaska, on the calendar day of Monday, March 4, 1918, did then and there agree with and cause one George A. Coleman to perform labor and services for it as its employee on a…

<p>1.' Mortgages <&wkey;526(l) — Execution—Confirmation.</p> <p>One Koel purchased property at an execution sale on mortgage foreclosure. A subsequent sale on an execution issued more than five years after judgment on a prior mortgage was made, and Koel objected to confirmation for that reason. Held, since Koel was not the judgment debtor, nor his representative, nor a party to the suit, nor bound thereby, he cannot be heard to object to confirmation of the sale in this case.</p> <p>2. Execution <&wkey;242 — Confirmation of Sale.</p> <p>At common law, no confirmation of a sale on a legal execution was necessary. Confirmation of such sale is purely a statutory proceeding, and, when granted, attests simply that the proceedings connected with the' sale are regular. It is not res judicata as to any contention that the execution is void or fraudulent.</p>

The defendant was convicted in the municipal court, Valdez, and fined $25 and costs for violation of Ordinance No. 89 of said town, entitled: “An ordinance providing for the licensing of itinerant merchants and for a penalty for violation of this ordinance.” The -said ordinance is passed pursuant to an act of the Alaska Legislature, being chapter 33, Session Laws of 1915. The validity of said ordinance is attacked by defendant.

In August, 1915, the plaintiff, Eureka Gold Mines Company, gave a written lease to M.’ E. Hendrickson of five lode mining claims owned by it near Valdez, Alaska, and Hendrickson assigned the lease to the defendant Cube Mines Company in February, 1916.

The complaint alleges: (1) That in accordance with the provisions of section 3, chapter 28, Territorial Session Laws of 1917, there duly came into the hands of defendant from the secretary of the territory of Alaska two warrants aggregating the sum of $8,164.13, payable to the order of “William G. String, treasurer of the school board of the Ketchikan school district.” (2) That said defendant refused, and still refuses, “to deposit/said warrants in the city treasury of the…

<p>1. Costs &wkey;>292 — In Criminal Cases — Follow the Judgment.</p> <p>Defendant was sentenced to pay a fine of $100 and appealed to the United States Circuit Court of Appeals, which affirmed. On return of the mandate, the defendant offered to pay the > amount of the fine. • The clerk taxed the costs of the trial in the lower court, amounting to $129.15, which defendant refused to pay. On appeal to the judge, held, the costs of prosecution follow the judgment as a matter of course, and defendant must pay such costs.</p> <p>2. Costs <@=>317 — Interest on Judgment — Brief of Appellee.</p> <p>Defendant was sentenced to pay a fine of $100, and appealed to the United States Circuit Court of Appeals, which affirmed. On return of the mandate the government taxed the costs of the trial in the lower court against the defendant, and therein taxed interest on the judgment, and printing the appellee’s brief on appeal. The clerk refuses to allow the items for interest and brief, and, on appeal to the judge, held, interest on the judgment and appellee’s brief are not allowable costs.</p>

The complaint in this case allegés that defendant “is a corporation doing business in Alaska, and was so engaged at all the times herein mentioned”; that on or about May 4, 1915, one George Bennett received personal injuries while in the employ of defendant; that defendant employed Dr. Sloane to treat said Bennett, which Dr. Sloane did; that the reasonable worth of his services was $300, no part of which has been paid; and that plaintiff is Sloane’s assignee and sues as such.

<p>Admiralty <&wkey;39 — Pleadings—Reinstatement of Dismissal.</p> <p>Libelant brought a proceeding in rem against the power boat Valentine for damages by collision with bis boat. Be-before return day tbe owner of the Valentine voluntarily paid the libelant the amount claimed as damage, and the libel was thereupon dismissed. Thereafter the claimant, owner of the Valentine, appeared and filed a motion to set aside the order of dismissal, and asked leave to appear and plead and defend against the libel, and in support of his motion filed an affidavit alleging that he is an Indian, and can neither read, nor write, nor speak the English language, and was misled by the statement that the amount claimed by the libelant was a fine and must be paid at once'to save his boat. Held, motion denied, because the judgment of dismissal must follow, even though he so appeared and defended, and because libelant had the right to voluntarily dismiss.</p>

The defendants in each of the above-entitled causes pleaded guilty to the offense of illegal fishing, for which they were indicted. Said offense is denounced in section 263, Compiled Taws of Alaska 1913. The sentence in each case was that defendant pay a certain fine therein prescribed and “costs to be taxed.” The government duly filed a cost bill and defendant duly made objections thereto. The clerk sustained the government’s cost bill, and defendant appealed to this court.

This, originally, was an action for possession of real estate and for damages for unlawfully withholding possession. On October 31, 1912, plaintiff herein recovered a judgment in this court against one P. F. Gilmore. Gilmore soon paid all of said judgment, except $195.66. On December 29, 1917, execution issued for the then balance ($239.50), and the same was duly levied upon certain real estate of said Gilmore in Ketchikan.

<p>I. Telegraphs and Telephones <@=333O/h) — Rules and Regulations.</p> <p>Reasonable rules and regulations of a telephone company, establishing a mode of inducing prompt payment of monthly rentals; sustained.</p> <p>.2. Mandamus <@=>15 — Tender—Telephone Rentals.</p> <p>Plaintiff being in arrears for his .telephone rentals, the company disconnected his machines. Plaintiff brought mandamus to compel reinstatement. Plaintiff tendered the arrears due after suit. Held, the tender was too late, and mandamus denied.</p> <p>3. Telegraphs and Telephones <§=>33(3) — Rules and Regulations — Waiver.</p> <p>The rules of a telephone company, of which plaintiff had notice, provided that for nonpayment of its rentals it might cut off the patron in arrears on the 20th of the month. Held, the company waived the rule for the last month’s arrears for failure to cut off the delinquent subscriber at the time provided in the rule, and also violated its own rule in cutting off the subscriber on the 10th of the next month, when its rule provides the 20th.</p>

Valdez. The original complaint in this case was filed September 5, 1916, and it alleged that plaintiffs and defendants Tjosevig and Halverson entered into a contract as follows: “Contract. “This contract and agreement, made and entered into this 12th day of January, 1911, by and between Christian Tjosevig and Eli Tjosevig, husband and wife, and Andrew Halverson, all of Valdez, Alaska, the parties of the first part, and Edmund Smith and T. J. Donohoe, of the same place, the…

<p>Appeal and error <@=5465(1)— Supersedeas.</p> <p>A supersedeas bond on appeal from the district court in Alaska should be sufficient to indemnify the appellee against any possibility of loss from whatsoever causes.</p>

<p>1. Maritime Liens <&wkey;25 — Lienable and Nonlienable Items Mingled in Maritime Lien.</p> <p>The libelant furnished oil upon the order and credit of the James Box & Dumber Company, generally, for use on several boats chartered by it, including the launch Pacific, and for use in its business. Some of the oil so ordered by the said company constituted supplies for the launch Pacific,, owned and operated by one Tibbits, under charter to the James Box & Dumber Company; but there was no way of finding out how much. Dibelant could not tell, and no other witness did tell. In other words, lienable and nonlienable claims were inextricably mingled and confused. The lien on the Pacific must therefore fail.</p> <p>2. Maritime Liens &wkey;>25 — Lienable and Nonlieinablei Items Mingled in Maritime Lien. ,.</p> <p>Armstrong, intervener, filed his maritime lien on the launch Pacific, for services on a general balance composed of the sums due him as engineer and later, as a watchman while the launch was tied up. For whatever is due as an engineer he would have a lien, but for what is due as a watchman while the boat was laid up he has no lien, because such services are not maritime. There is no evidence as to how much is due him as an engineer, or how much is due him as a watchman, and so the lien must fail.</p> <p>3. Admiralty <&wkey;>15 — Courts—Jurisdiction.</p> <p>Where libels against a vessel have failed for want of proper proofs, or for other reasons, an admiralty court has no .jurisdiction to foreclose a general mortgage, and the cause must be dismissed.</p>

<p>The petition herein is as follows:</p> <p>“In the Matter of Application of James Wiekersham for Issuance of Subpoenas under Section 110, Revised Statutes of the United States. No. 2454. Petition.</p> <p>“To Honorable Charles E. Bunnell, District Judge, Division 4, Alaska:</p> <p>“Conies now your petitioner, James Wiekersham, by his attorney, Morton B. Stevens, and respectfully shows to the court as follows:</p> <p>“1. That at a general election held in the territory of Alaska on November 5, 1918, your petitioner was a candidate for election to the office of delegate to Congress on the Republican ticket, and one Charles A. Sulzer was a candidate for said office on the Democratic ticket. That the said Charles A. Sulzer is now deceased, and this proceeding is therefore ex parte.</p> <p>“2. That on or about the 17th day of April, 1919, the canvassing board, created by law to canvass the returns of said election, certified that said Charles A. Sulzer had been duly elected at said election.</p> <p>,3. That your petitioner is now contesting the legality of said election and the validity of said certificate in proper proceedings before the House of Representatives of the United States, and for the purpose of said contest desires to obtain certain testimony concerning said contested election, and desires to examine under oath respecting the said contested election the following named- persons stationed at Fairbanks, Alaska, who were at the time of said election enlisted men in the military service of the United States and voted at said election, and whose right so to do is, in said contest, questioned, viz.: John E. Pegues, Herman B. Stenbuck, E. D. Whittle, and Durwood M. Hocker. And your petitioner desires the issuance of a writ of subpoena directed to each of said persons to attend, for said examination, before the honorable judge of said court on the 21st day of May, 1919, in the district court room at the courthouse in Fairbanks, Alaska, at the hour of 2 o’clock p. m. of said day, then and there to be examined respecting said contested election, pursuant to the provisions of section 110 et seq. of the Revised Statutes of the United States.</p> <p>“And your petitioner will ever pray.</p> <p>“Morton E. Stevens, Attorney for Petitioner.</p> <p>“Territory of Alaska — ss.:</p> <p>“Henry T. Ray,, being first duly sworn, on oath deposes and says: That he is the agent of the petitioner herein, and that he has heard read the foregoing petition, and knows the contents thereof, and the ^ facts therein stated are true as he verily believes.</p> <p>“Henry T. Ray.</p> <p>“Subscribed and sworn to before me this 14th day of May, 1919.</p> <p>“Cecil H. Clegg,</p> <p>“[Notarial Seal.] Notary Public in and for Alaska.</p> <p>“My commission expires Oct. 31, 1919.”</p>

The gist of the complaints in these cases is: First. That plaintiff is, and since 1886 has been, engaged in the business of the manufacture and production of fish oil, fertilizer, ■ fish meal, and by-products from herring fish in whole and in part, and has a valuable plant for that purpose, and that said business is useful, legitimate, and commendable, but that it is necessary that the same should be conducted on a small margin of profit. Second.

This is a suit against Ed. C. Russell,, proprietor and publisher of the Alaska Daily Dispatch, and the Disianski Packing Company and J. H. Cann, its agent, for damages for a libel which was alleged to have been published in the Dispatch at the instigation and request of said Packing Company and Cann. The action is against the defendants jointly, and recovery is sought for $1,500 compensatory damages and $1,000 punitive damages.

Originally the above-numbered cause was an application by Valdemar T. Hammer, above-named plaintiff, that a' receiver of Alaska-Ebner Gold Mines Company, above-named defendant, be appointed by this court as ancillary to an appointment of general receivers of said company which had been made by the United States District Court for the Southern District of New York.

<p>Elections &wkey;>5 — Right of Suffrage.</p> <p>The right of suffrage is not a natural or civil right, but a privilege conferred by law, and, when unrestrained by Constitution or other organic law, the power of the Legislature is practically absolute in establishing the right and the method and procedure for its exercise.</p>

<p>Mines and Minerals &wkey;>23(4)— Statutes — -Constitutional Law.</p> <p>The Legislature of Alaska provided, in section 7 of chapter 10 of the Session Laws of 1915, that the failure to file for record the proof of assessment work on placer mining claims in Alaska, not later than 90 days after the close of the calendar year in which work was done, shall be deemed an abandonment of tbe location, and the claim shall thereafter be subject to relocation by any other person. Tbe defendant performed his assessment work for 1916, but did not file his proofs within the time fixed by the territorial act, whereupon plaintiff entered upon and located the claim, and brought suit to quiet title. Mold, the Legislature of Alaska had power to enact the statute, and it is valid, and, the defendant having failed to comply with it, plaintiff’s claim is valid, and his title quieted in accordance therewith.</p>

<p>Appeal and error &wkey;>!2l2(l) — Trial on Remand — Practice.</p> <p>On former appeal in this case the Circuit Court of Appeals denied a writ of prohibition and remanded the case to this court for further proceedings in compliance with that decision. Regarding the order of the Circuit Court of Appeals as “one merely for further examination by the.district court into the point upon which reversal was ordered,” this court has heard the evidence and adjudged accordingly.</p>

The defendant Wood is one of several'judgment debtors in civil case No. 1756. F. G. Noyes is the receiver of the Washington-Alaska Bank and is the plaintiff in said action. The defendant Wood herein is indebted to the receiver of the Washington-Alaska Bank in a sum amounting to over $200,000.

<p>1. Elections <§=259 — Returns—Municipal Corporations.</p> <p>The duties of a canvassing board in incorporated towns are purely ministerial, and they cannot go beyond the returns of the election boards. To do so would be the exercise of judicial powers, which they do not possess.</p> <p>2. Elections <§=247 — Returns.</p> <p>All the votes, certificates, tally sheets, and other papers or envelopes, duly authenticated by the election board and returned to the canvassing board, constitute the returns of the election.</p> <p>3. Elections <§=259 — Canvassing Boards — Municipal Corporations.</p> <p>It is the duty of the canvassing board at a municipal election to scrutinize and tabulate the returns, and make their findings in accordance with the returns of the election board, unless there is a plain fraud on their face, or a mistake or error in the tabulation. The canvassing board cannot review their action, as they are not a judicial body, and exercise no judicial functions.</p> <p>4. Mandamus <§=74(f) — Election Officers.</p> <p>Mandamus will not lie to¡ require election officers to perform an act not within the scope of their lawful duties.</p>

The plaintiff, a Washington corporation, claims in its second amended complaint that the defendants, an Alaskan co-partnership, are indebted to them in a considerable amount of money for goods, wares, and merchandise sold and delivered to defendants by three different foreign corporations, each of whom assigns its claim and account to the plaintiff.

The defendant has made a motion that plaintiff be required to pay the sum of $300 as suit money, and an additional sum of $50 per month for support pending the action. She supports her motion by her own affidavit, wherein she sets forth that she has a good and meritorious defense to the action, that she is at present in Seattle, and that it will be necessary for her to come to Juneau for the trial of the case, and also to take depositions in support of her defense.

In 1919 plaintiff maintained a fish trap, known as trap No. 2, on the easterly shore of Moser Bay, an arm of Alitak Bay.

<p>Justice of the Peace &wkey;>l60(3) — Appeal and Error.</p> <p>When a notice of appeal from a judgment in the justice court fails to describe the judgment as having been entered in any particular case, does not give the amount of the judgment, nor otherwise indicate the nature thereof, whether it be for money or for possession of property or something else, it is insufficient, and will be dismissed on motion.</p>

<p>Account &wkey;>l4 — Specific Performance <&wkey;68 — Equity.</p> <p>Plaintiff purchased 20 bead of , female reindeer from one Larsen in 1917, who agreed to look after and take care of same for the period of one year. After the death of Larsen demand was made on the administrator of his estate for the female deer and the natural increase, which being denied, a suit for accounting was begun. Held, accounting and specific performance the proper remedy, and judgment accordingly.</p>

In this case there was a petition filed praying that the liquor seized be destroyed and that the officers be restrained from giving any testimony of facts ascertained by virtue of the search warrant. I held that the application for the destruction of the liquor seized was not well taken for the reason that there is no property in liquor and that it was a matter of no consequence to the defendant what became of the liquor seized.

<p>Mines and Minerals <&wkey;23 (5) — Statutes.</p> <p>Section 2324, U. S. Rev. St. 1878 (U. S. Comp. St. § 4620), provides for the doing of annual assessment work to the extent of $100 on each and every mining claim. By resolution of Congress approved October 5, 1917 (U. S. Comp. St. 1918, TJ. S. Comp. St. Ann. Supp. 1919, § 4620b), section 2324 was suspended for the years 1917 and 1918. Defendant’s annual assessment work was not done for those years, and plaintiff located the claims for that reason. Held, the resolution of October 5, 1917, applied to Alaska, and plaintiff’s attempted-location of such mining claims was void.</p>

Charles Martin, on August 8, 1920, being seriously ill, in contemplation of death, gave to H. I. O’Neill one check drawn on the First Bank of Cordova, of Cordova, Alaska, for $704.48; one time check drawn on the Copper River & Northwestern Railway Company, for $130.60; money in the sum of $12.35; one gold watch of unknown value; and one gold ring of unknown value. ■ Thereupon this defendant immediately.went into and-took possession of all of said property, and on the said…

Peter Koski was killed as the result of a slide occurring on the 2d day of January, 1920. His widow, Mary Koski, was appointed administratrix of his estate. The slide destroyed personal property belonging to the said Peter Koski, and the said Peter Koski was himself killed by said slide.

The plaintiff brings an action for $20,000 compensatory damages and $5,000 punitive damages against the defendants on account of an alleged false and libelous article which was published in the Alaska Daily Empire on the 8th of September, 1920, concerning the plaintiff while he was a candidate for the office of Attorney General of the territory of Alaska; he having been duly nominated as the regular Republican candidate for that office, to be voted upon at the general…

On December 4, 1918, the Craig Dumber Company, by Henry Shattuck, its president, deposited with the Seattle National Bank the sum of $8,000 to the credit of the Bank of Alaska at Wrangell, Alaska; and on the 5th day of December of the same year it wired the Bank of Alaska as follows: “Have deposited Seattle National your credit eight thousand all of which for October and November pay rolls.

The Standard Oil Company, defendant, stands indicted for doing business without a license on six counts, charging the doing of business at Juneau, Ketchikan, Petersburg, Wrangell, Waterfall, and Sitka. It is alleged in the indictment that the license properly required for doing business at Juneau was $500; for doing business at Ketchikan was $500; for doing business at Petersburg was $250; for doing business at Waterfall,was $50; and for doing business at Sitka was $50.

The stipulated facts in this case differ from those of the preceding case (No. 1404-B, 6 Alaska, 347) in the following particulars, to wit: In this case taxes are claimed to be due for the year ending October 31, 1917, and instead of the company having procured a license, as in the preceding cases, for “all Alaska,” it tendered to the clerk of the court $500 for such a license and demanded that the same be issued to it.

The McDonald-Weist Logging Company is a corporation organized under the laws of the state of Washington. It made an abortive effort to comply with the laws of the territory of Alaska requiring corporations to file certain papers before doing business in the said territory. The Craig Lumber Company was also a foreign corporation, and duly complied with the requirements of the laws of said territory concerning the doing of business within the said territory.

<p>Garnishment <&wkey;59 — Funds in Custodia Legis.</p> <p>An execution creditor procured the marshal to serve a writ of garnishment on the clerk of the court against a fund in custodia legis in another suit belonging to his debtor. He then made application to the court for an order to require the clerk to pay him the money so remaining in the registry of the court. Held, the clerk held the money in the'registry of the court as custodian for the court, which had theretofore compelled the owner to deposit it there in another suit, and the court will not permit it to be paid out by the clerk without notice is given to the owner by the applicant and the owner given opportunity to appear and defend his rights to the possession of the money.</p>

<p>1. Territories <&wkey;í8 — Constitutional Law.</p> <p>Section 27 of the act of Congress entitled “An act to provide for the promotion and maintenance of the American merchant marine,” etc., approved June 5, 1920, provides: “That no merchandise shall be transported by water, or by land and water, on penalty of forfeiture thereof, between points in the United States, including districts, territories, and possessions thereof embraced within the coastwise laws, either directly or via a foreign port, or for any part of the transportation, in any other vessel than a vessel built in and documented under the laws of the United States and owned by persons who are citizens of the United States, or vessels to which the privilege of engaging in the coastwise trade is extended by sections IS or 22 of this act: Provided, that this section shall not apply to merchandise transported, between points within the continental United States, excluding Alaska, over through routes heretofore or hereafter recognized by the Interstate Commerce Commission for which routes rate tariffs have been or shall hereafter be filed with said commission when such routes are in part over Canadian rail lines and their own or other connecting water facilities.” The plaintiff caused a shipment of goods from an Eastern United States point to be made via the Grand Trunk Pacific Railroad, across Canada, to Prince Rupert, and thence to Juneau, Alaska, by Canadian steamship. The collector of customs seized the shipment and took steps to forfeit the same to the United States under the above statute ; this suit was brought for injunction to prevent such forfeiture upon the ground that the above-quoted section of the act of Congress was unconstitutional as being in contravention of subsection 6 of section 9, art. 1, of the Constitution, which provides: “No preference shall be given by any regulation of commerce or revenue to the ports of one state over those of another.” On demurrer to the complaint, held, the provision of the Constitution has reference only to the ports of the states, and it has no application to the ports of a territory, and the act is constitutional and valid.</p> <p>2. Territories <®=>13 — Alaska.</p> <p>Alaska has been incorporated into and is a part of the United States, but it is a territory,” and not a state, and it is governed by Congress by virtue of that clause of the Constitution which provides that Congress has power “to dispose of and make all needful rules and regulations respecting the territory or other property of the United States.”</p> <p>3. Territories &wkey;>II — Constitutional Law — Power of Congress over Alaska. ■</p> <p>Congress has the power, if it chooses to exercise it, to absolutely close, not only the port of Juneau, Alaska, but all the ports of Alaska. It may prohibit all commercial intercourse with Alaska. Having the power “to dispose of” the territory, it may dispose of any part thereof. It has the power to prescribe that all commercial intercourse with Alaska shall be had by means'of vessels of American ownership and registry.</p>

This is a bill in equity asking that an ancillary receiver be appointed, in aid of the state of Virginia court r(the court of original jurisdiction), of property in the second division, territory of Alaska, and within the jurisdiction of this court. All the primary steps for the appointment of a receiver 'by the Virginia court are fully set out in the bill by duly authenti- ■ cated and amplified records of the Virginia court.

The plaintiff is seeking to foreclose a real and chattel mort- , gage and a chattel mortgage on the property described in said mortgages. The amount alleged to be due is $65,000. The complaint was filed November 20, 1919, and it appears that the chattel mortgage, which was executed February 8, 1918, and filed with the recorder of the Otter recording precinct on the 9th day of September, 1918-, covers a certain lot of sawlogs.

<p>I. Salvage <&wkey;9 — Admiralty—Maritime Liens.</p> <p>The power schooner Eunice, of 50 tons burden, was moored by two anchors in Little Harbor, TJnga, in November, 1919. Johnson, intervening libelant, was staying on the schooner, without contract of employment and by sufferance, furnishing his own food and fuel. A heavy storm arising, the Eunice drifted on the shore, the cable on one anchor parted, and the other anchor dragged. Johnson called on Shea, Mclnnis, Larsen, and Arnesen, who were close by, and, with the assistance of the power boat Flossie, of 8 tons burden, in charge of Shea, succeeded in hauling the Eunice off shore, working several hours on two tides, and she was anchored again by Johnson in a safe position. The testimony showed that a severe storm was raging, and, unless the Eunice had been promptly salvaged, she might have been a total loss. Johnson showed other work of pumping. On libels by Shea, Mclnnis, Larsen, and Arnesen, and intervening libel by Johnson, heW, libelants entitled to recover for salvage and amounts fixed by the court.</p> <p>2. Salvage &wkey;>7 — Watchman on Vessel.</p> <p>Where one remains on a vessel without contract of employment and by sufferance, furnishing his own food and fuel, and, acting with other volunteers whom he calls, rescues the vessel from total loss in a storm, the services are not those of a mere watchman or caretaker, but those required of a mariner, protecting the vessel from the perils of the sea, for which he may libel the vessel and recover salvage for his services.</p>

<p>Grand Jury <&wkey;25 — Courts—Judicial Divisions — Indictments.</p> <p>The defendant was indicted on June 22, 1921, by the grand jury at Flat, Alaska, in the Fourth judicial division, for the crime of burglary, alleged to have been committed by him on January 24, 1921, at Bethel, then in the Second judicial division. On ■ demurrer to the indictment that the court is without jurisdiction because the grand jury in the Fourth division had no jurisdiction to indict the defendant for a crime committed in the Second division, held that, while Alaska is divided into several judicial divisions, with an established district court in each, the jurisdiction of each court extends over the whole territory of Alaska, and is not confined to any one division, and that a grand jury is any division in Alaska may indict a person for a crime committed anywhere within the territory, and in any division, and opinion in the case of United States v. Beasly, 2 Alaska, 93, is not approved.</p>

<p>I. Criminal Law <&wkey;l215 — Habeas Corpus^Fine.</p> <p>Defendant was convicted for the crime of selling liquor in violation of the law, before a justice of the peace and sentenced to pay a fine of $250, “and that he be imprisoned in the .federal jail at Fairbanks, Alaska, for the term of four months,” but the judgment of conviction did not direct that he be imprisoned in the county jail until the fine be satisfied. Defendant applied for habeas corpus after serving the four months’ imprisonment, leaving the fine unpaid. Held, the imprisonment provided in the sentence was not in lieu of the fine, but in addition thereto; and the defendant must serve the four months imposed in the judgment, and also pay the fine under the terms of section 2299, Compiled Daws of Alaska 1913.</p> <p>2. Fines <&wkey;6 — Criminal Lav/ — Judgment.</p> <p>A judgment of conviction in a criminal case in Alaska, which provides that a judgment that the defendant pay money either as a fine or as costs and disbursements of action, or both, must be docketed as a judgment in a civil action, and may be enforced by execution against the property of the defendant in like manner as judgments in civil cases are enforced.</p> <p>3. Fines <&wkey;I2 — Judgment—Criminal Law.</p> <p>As a general rule, where the punishment for an offense is both fine and imprisonment, the court may order defendant, for failure to pay the fine, to be imprisoned, and that such imprisonment begin after the expiration of the term fixed as a punishment for the crime.</p>

On October 31, 1912, P. F. Gilmore was the owner of lot 6, block 19, in the town of Ketchikan, and of a tract of tideland abutting thereon and extending seaward to the North-land dock, which cut off said tract of tideiand from the navigable water. On said date Peter Ziller recovered judgment against the said Gilmore, and the same became a lien on all the real property of the said Gilmore.

This is a libel against the gas power boat Carmen for wages alleged to be due to L. J. Collins and Leslie McClellan.

This is an action brought by the plaintiff to obtain a writ of mandamus to be directed to the defendant commanding him to register and pay two certain warrants signed by R. J. Sommers, secretary of the territory, for the sum of $155.85 and $150, respectively.

Criminal. An information having been filed in the district court on the 20th day of September, 1921, charging the defendant herein unlawfully and knowingly having and possessing property designed for the manufacture of spirituous intoxicating liquor intended for use in violation of title 2 of the National Prohibition Act of October 28, 1919, commonly known as the Volstead Act, the defendant appears by petition for the release of certain property described in the information,…

Bankruptcy. This is a summary proceeding in bankruptcy to determine the validity of a chattel mortgage as a preferred claim, the trustee of the bankrupt protesting against its allowance as a preferred claim on the ground that it was a voidable preference under the provisions of section 60b of the Bankruptcy Act (U. S. Comp. St. § 9644).

The plaintiff herein on the 9th day of February, 1920, filed an action in equity in this court against the defendant praying that the bonds of matrimony between herself and the de^ fendant be dissolved, and that the custody of their five minor children he awarded to her; also that such portion of their community property be allowed and set apart to her as the court should find to be equitable and just, and that in the meantime the defendant be enjoined and restrained from…

The appellant is the wife of Herman Rosburg, deceased, who died on the 7th day of May, 1920, at Nenana, Alaska. At the time of his death deceased was a member of the co-partnership of Rosburg & Burns, of which Joseph E. Burns is now the administrator. Under appointment by the probate court for the Nenana precinct, Joseph E. Burns became administrator of the above copartnership on the 24th day of May, 1920.

The town of Fairbanks, a municipal corporation, on the 25th of July, 1921, filed with the commissioner of the Fairbanks precinct a petition to annex- certain territory adjoining the town. This petition was filed pursuant to a resolution adopted by the common council of the municipality under the provisions of chapter 47 of the Territorial Session Taws of 1921. Section 2 of chapter 47 provides the manner in which notice of such proposed action shall be given.

Criminal. Plaintiff sued defendants asking-damages for alleged false imprisonment. His complaint alleges that Brenneman is United States marshal of the Third division of Alaska, and Kavanaugh his deputy at McCarthy.

<p>1. Intoxicating Liquors <&wkey;8, 132 — National Prohibition Act — Alaska Prohibition Act.</p> <p>Both, acts of Congress, the National Prohibition Act (41 Stat. 305), and the Alaska Prohibition Act (39 Stat. 903, TJ. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 3643b-3643r) are in force in Ala.ska. Both acts are enforceable to a large extent, by the same officers, in the one case acting under the provisions of the bone dry law of Alaska, and in the other under the National Prohibition Act. In other words, the Alaska Prohibition Act and the National Prohibition Act are to be construed and may be enforced concurrently, but where the provisions of the two laws conflict or are antagonistic by reason of more drastic legislation in the local act, the National Prohibition Act must .give way to the provisions of the local law.</p> <p>2. Intoxicating Liquors <&wkey;249 — Statutes—Searches and Seizures.</p> <p>In Alaska there are three provisions of law in force under which a search warrant may issue for intoxicating liquors: First, under section 17 of the Alaska Prohibition Act (U. S. Oomp. St. 1918, U. S. Comp. St. Ann. Supp 1919, § 3643j); second, under the provisions of section 23 of the same act (section 3643m); in both such cases, however, the warrant must issue under the procedure of and limited by the general search warrant act of Alaska (section’s 2488-2490, Compiled Laws Alaska 1913); and, third, under the provisions of section 25 of the National Prohibition Act, subject to and governed by the provisions of the general search warrant, act of June 15, 1917. (40 Stat. L. 228 [U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, §§ 104961/4a-10496%v]).</p> <p>3. Intoxicating Liquors &wkey;249 — Searches and Seizures.</p> <p>A. proceeding for the issuance of a search warrant in liquor cases under the laws in force in Alaska cannot be considered a civil proceeding in-the nature of a proceeding in rem. It is a proceeding of a semicriminal nature, or rather ancillary or supplemental to a criminal action.</p> <p>4. Intoxicating Liquors &wkey;>247 — Arrest—Searches and Seizures.</p> <p>If the officers of the law should discover any person actually violating the Alaska Prohibition Act by manufacturing liquor, or having it in their possession, then it is their duty to make an immediate arrest, and on such arrest the officers are authorized to take possession of the liquor so being manufactured and used, without a search warrant.</p> <p>5. Intoxicating Liquors <&wkey;>249 — Searches and Seizures — Witnesses.</p> <p>On objection to a search warrant that there was no showing that there was any appearance of one or more persons who are competent witnesses before the issuance of the warrant, hcid, every person is presumed to be a competent witness, and it is unnecessary, either in the affidavit or warrant or record, to show the competency of a person making the affidavit. Incompetency of a witness in such case must be shown’ by the party objecting thereto.</p> <p>6. Intoxicating Liquors &wkey;>249 — Searches and Seizures — Statutes.</p> <p>Objection to a search warrant issued under section 17 of the Alaska Prohibition Act that it does not show the oath made by the complaining witness was made before the district attorney, or his authorized deputy. Held, that it is not necessary that the district attorney or his deputy should administer the oath; that the district attorney has no' authority under the law to administer the oath. The reasonable construction of that requirement is that the words “charge under oath” should be construed so as to read “accuse on oath before the district attorney”; in other words, that if a presentment on oath should be made to the district attorney, he should act.</p> <p>7. Intoxicating Liquors i&wkey;249 — Searches and Seizures — Description of</p> <p>Premises.</p> <p>Search warrant issued commanding the marshal to search the San Francisco Bakery Building for intoxicating liquor alleged to be concealed therein by the defendant; objection is made that the San Francisco Bakery Building is a three-story building, each separate floor or story of which was occupied by separate families as their dwelling places. Held sufficient because the affidavit sets forth that the building is occupied by the defendant, and alleged that he has concealed therein alcoholic liquors — a sufficient description of the premises to be searched.</p> <p>8. Intoxicating Liquors <§=»249 — Searches and Seizures — Probable Cause.</p> <p>Where the affidavit for a search warrant discloses that the affiant saw men drinking from containers on the premises, and as a result thereof the men became intoxicated, and in the premises saw men receive alcoholic liquors from the defendant and drinking liquors which had the effect of intoxication, there is sufficient evidence of probable cause for the issuance of a search warrant. An express finding of probable cause in the warrant itself, or in the court records, is not necessary. The fact that a search warrant is issued by a justice of the peace is in itself a finding of probable cause by him.</p> <p>9. Criminal Law <&wkey;394 — Intoxicating Liquors <&wkey;249 — Searches and • Seizures.</p> <p>A search warrant was issued to search certain described premises, but neither the affidavit nor the search warrant named or disclosed the person charged, and did not present that any person, company, etc., has or have violated the act: Held, fatal omission, and rendered the search warrant void, and the proceedings thereunder illegal; the warrant was quashed and all evidence obtained thereby was suppressed.</p> <p>10. Intoxicating Liquors <©=3249 — Searches and Seizures — Return and Receipt.</p> <p>The objection that no receipt was given for the property seized on search warrant, or no proper return was made by the officer, are simply omissions by the officer making the seizure to do ministerial acts, which may be corrected at any time, and are not grounds for quashing the writ.</p>

Plaintiff brought suit against defendant, averring that he had erected a building at the corner of G street and Fifth avenue in the town of Anchorage, which projects into each of the streets named, along, about 213/2 feet of Fifth avenue ándT42 feet of G street; that said streets have been public thoroughfares in general public use- for a long time; that, de- ' fendant has been notified by plaintiff to remove said obstruction, but he has refused so to do; and plaintiff asks…

This cause was submitted on the motion of the United States to dismiss the appeal of the defendant Smith from a judgment of conviction of a violation of section 1 of the. Alaska Bone Dry Act (U. S. Comp. St. 1918, U. S. Comp. St. Ann. Supp. 1919, § 3643b), entered on October 25, 1921, by the commissioner and ex officio justice of the peace of the Petersburg precinct.

This case is an action for injunction. To the complaint a demurrer has been interposed, on the ground that the facts stated do not constitute a cause of action against the defendant, and-on other grounds. The complaint alleges that prior to the 3d day of June, 1911, the plaintiff has been engaged in the business of selling dry goods, women’s and children’s wear, in the town of Fairbanks, and has built up a lucrative business in that line.

I have considered the motion of W. H. Winston to set aside the referee’s order, disallowing the claim of lien of Winston, as attorney, on moneys payable to one A. R. Spaeth, as assignee of H. B. Hendrickson and creditor of the estate of the bankrupt. The lien is claimed for services performed as, attorney at law in securing the allowance of the claims of said Hendrickson.

<p>1. Navigable Waters &wkey;?l9 — Obstructions—Pleadings—Fish Traps.</p> <p>A complaint alleging that defendant’s fish trap, constructed in the navigable waters of the United States, extending half a mile seaward a,t right angles from the shore into the said navigable waters, was so constructed without the affirmative authority from Congress, was heavily and solidly built and unlighted, that without fault the plaintiff in the nighttime ran into the said structure, and was damaged by the loss of his boat, states a good cause of action.</p> <p>2. Navigable Waters <&wkey;!9 — Fish Trap — Negligence.</p> <p>The erection and maintenance of a fish trap at right angles to the seashore, and half a mile seaward, into the navigable waters of the United States, without the affirmative authority of Congress, is malum prohibitum, and is prima facie negligence, and if the defendant’s special damage was due to the erection and maintenance of such structure, he has a right of action.</p>

The petitioner, Dr. George E. Dickinson, on June 8, 1921, obtained judgment before this court against the town of Petersburg, a municipal corporation, for services rendered the said corporation by him, in the sum of $1,857.50 and costs.

Criminal. On the 8th day of March, 1922, the defendant was regularly indicted by the grand jury, in count 1 of the indictment for having in his possession intoxicating liquors otherwise than as authorized by title 2 of the National Prohibition Act (41 Stat. 305), to wit, foy intoxicating beverage purposes, and by count 2 thereof for transporting such liquors in violation of said act.

On July 23, 1921, a collision occurred in the waters of Revillagigedo Channel, off Mary Island, in the waters of the territory of Alaska, between the gas boat Eagl'e and the gas boat Wildwood, in which the Wildwood was damaged.

Iditarod. This is an action by the plaintiff, Helen G. Cairns, against Otter school district and the members of the school board of the district, as director, clerk, and treasurer, upon an alleged contract for services as teacher of the district school at the rate of $200 per month for the period of nine months, which she claims she has faithfully and well performed under the terms of the contract.

Criminal. Objection is made on behalf of defendants to the admission of what is alleged to be incriminating evidence against them, obtained by two deputy marshals by a search of their residence made pursuant to what the defendants claim was an unlawful entry. The facts are these: Deputy Marshal Mossman held a warrant for the arrest of defendants and another upon a charge of violating the Alaska Bone Dry Law (U. S. Comp. St. 1918, U. S. Comp. St. Ann.