Kederick v. Heintzleman

• Decision Date: 24 June 1955
• Docket Number: Civ. No. A-10964.
• Citation: 132 F. Supp. 582
• Parties: Bob KEDERICK, Plaintiff, v. B. F. HEINTZLEMAN, Governor of the Territory of Alaska, et al., Defendants, Hadley Stephens, Intervenor, Maurice T. Johnson, Intervenor.
• Court: U.S. District Court — District of Alaska

132 F. Supp. 582

Bob KEDERICK, Plaintiff, v. B. F. HEINTZLEMAN, Governor of the Territory of Alaska, et al., Defendants Hadley Stephens, Intervenor Maurice T. Johnson, Intervenor.

Civ. No. A-10964.

District Court, Alaska Third Division, Anchorage.

June 24, 1955.

John E. Manders, Anchorage, Alaska, for plaintiff and intervenors.

Raymond E. Plummer (of Plummer & Biss), Anchorage, Alaska, for Burke Riley, defendant.

J. Gerald Williams, Atty. Gen. for the Territory of Alaska, for the territorial agencies.

McCARREY, District Judge.

This is an action to restrain the governor and others, named as defendants herein, from certifying one Burke Riley as a candidate to the Territorial Constitutional Convention, and to enter an order disqualifying all members of the Twenty-second Legislature of the Territory of Alaska to serve as members of the Constitutional Convention. This action was initially instituted by one Bob Kederick, who sues as a candidate for said convention, and as a citizen. Separate motions for leave to intervene were filed by one Hadley Stephens and one Maurice Johnson, on the grounds that they stand in a similar position to that of the plaintiff, Bob Kederick, herein. Counsel for the defendant was given leave to file objections to said motions, and failed to so do. The motions to intervene are hereby granted.

The determination of this case turns upon section 11 of our Organic Act, 1 A.C.L.A.1949, 57; 37 Stat. 512, section 11, which provides "That no member of the legislature shall hold or be appointed to any office which has been created, or the salary or emoluments of which have been increased, while he was a member, during the term for which he was elected and for one year after the expiration of such term; and no person holding a commission or appointment under the United States shall be a member of the legislature or shall hold any office under the government of said territory."

Plaintiff contends that the prohibition against holding applies also to being elected and, thus, the defendant, Burke Riley, cannot be placed on the ballot. Defendant Riley contends that the word "hold" prohibits only his occupancy of the office, and does not prohibit him from being elected to the office. The defendant Riley further contends that Congress may pass enabling legislation to amend section 11 of the Organic Act and cites legislation which is now pending before it.

This case then must turn on the construction given the word "hold" as used in the Organic Act. This term has not been construed by any other courts in Alaska, thus, it appears to be a case of first impression.

Concise definition of the word "hold" has been difficult to find. Concerning the word "hold" as a verb, the general statement is made in 40 C.J.S. p. 406 that "It has been said that there are innumerable legal definitions of the word and that obviously its meaning depends on the context or its relation to other parts of the whole instrument in which it is used". Black's Law Dictionary defines "hold" as to possess; to control; to direct the operations of; to keep. It is plain to see that a strict definition of the term will not suffice in this matter, as the problem is not one of definition but one of construction. Counsel for the plaintiff has cited one federal case. Many decisions have been cited by the parties herein, concerning the construction of the word "hold" and words of like nature, decided by appellate courts of the several states. While these decisions are in no way binding on this court, they are indeed helpful in arriving at a definition of the term, and providing reasons therefor.

Counsel for the defendant has referred the court to 88 A.L.R. 826, an annotation which states, generally, that a prohibition against holding does not prohibit election. The cases cited therein do not purport to be an exhaustive annotation on the matter, and are of jurisdictions of the eastern portion of the United States. These cases seem to rest on a strict construction of the word "hold", and do not consider the intent and purpose of the provision as a whole.

In addition, we must distinguish the physical makeup of the states, from which the state decisions cited by counsel for the defendant were taken, from the geographical construction here in the Territory of Alaska. In the Territory of Alaska, a land mass constituting an area approximately one-sixth the size of the entire forty-eight states, and possessing approximately 27,000 miles of shoreline, makes peculiarly difficult the problems of distribution of ballots, campaigning, communication, and the dissemination of information germane to the election of the candidates. In the past, there have been numerous communities which, because of their remoteness, transportation costs and sparse populations, have not been visited by candidates. Likewise, only the larger cities and towns have newspapers, radio stations and other means of communication; hence, the voter cannot keep himself fully informed of the current issues of the election and, certainly, when a candidate's name is on the ballot, the voter has reason to believe that if his candidate receives the highest number of votes that he is qualified to hold office. Thus, due to these circumstances peculiar to our territory, it is incumbent upon this court to consider the practical effect the construction of the term here in question will have on the people of the territory.

Counsel for the plaintiff in his brief cited the case of Padron v. People of Puerto Rico ex rel. Castro, 1 Cir., 142 F. 2d 508, 509. In that case, the court had before it a portion of the Organic Act of Puerto Rico, which provided that "no senator or representative * * * shall, during his term of office, be appointed to any civil office under the Government of Puerto Rico", 39 Stat. 959 as amended in 52 Stat. 595, 48 U.S.C.A. § 819. Admittedly, the word "appointed" may be distinguished from the word "hold" in our Organic Act. However, as the court pointed out in the Padron case, citing a Senate committee report, to the effect that "`the above provision, recommended by this committee, as an amendment to the bill, is designed to...