V

McKENZIE AT WORK—THE STORM—THE UNITED STATES COURT OF APPEALS

ome had become more substantial in appearance,—there were fewer tents and more buildings,—but it was even more unsightly now that the rain had made the streets a perfect sea of mud, knee-deep in most places. The Wild Goose Company's railroad had been laid, and was in successful operation. On all sides was manifest the hustling genius of the American people. We put up at a remarkably promising place, The Golden Gate Hotel; and, after a long unacquaintance with such a luxury, rested between sheets, and gave our things a chance to dry. We were lucky to have caught the Elmore, for otherwise it would have meant detention at Chenik for a week, awaiting an abatement of the storm. It was a pleasure to see some of our friends again, and very interesting to learn the news and latest developments. The story of the wonderful strike of gold at Kougarok and Gold Run, back of Port Clarence, was corroborated, and, generally, the mine-owners said that the country was richer than they had ever dreamed it to be. The receivership story was also very generally confirmed. Undoubtedly there then existed in the civil administration of the Nome country as corrupt a ring of wholesale robbery and blackmail as one can imagine.

The following account may better enable the reader to appreciate the magnificence of the scheme of confiscation which at this time was in a prosperous state of realization.

There had been organized in the city of New York, under the laws of Arizona, with a capital stock of fifteen million dollars, The Alaska Gold Mining Company, of which Alexander McKenzie, a man of political influence, well known in the Dakotas, was the chief promoter and the owner of a majority of the stock. He had placed a portion of the remainder where he believed it would stand him in good stead. The main assets of this company consisted of "jumpers'" claims to rich mining property near Nome, principally situated on Anvil Creek—claims which, having already been taken or "located," had been "jumped" or "relocated" by certain individuals on some of the pretexts suggested by the looseness of our mining laws, and which in a new country so frequently constitute a species of legal blackmail. These claims, for the most part, had been purchased from the original owners by the Wild Goose and the Pioneer Mining companies, large corporations which had been formed to operate them, and other claims, on a very large scale, and which, with immense equipment at hand for future operations, were already, in the early season of 1900, engaged in taking out the gold in great quantities.

In company and on the same vessel with McKenzie, Judge Noyes arrived at Nome on the nineteenth day of July, 1900, and (to use the language of the Circuit Court of Appeals in the McKenzie contempt cases) "on Monday, July 23, before the court was organized and before the filing of any paper of any character with the clerk of the court, [McKenzie] was appointed by Judge Noyes receiver of at least four of the richest claims in the district of Nome, upon complaints made by persons the interest therein of at least one of whom had theretofore been acquired by the receiver's corporation, the Alaska Gold Mining Company." And this, too, upon papers grossly inadequate, without notification to the parties in possession, or an opportunity for them to be heard, and, generally, in total disregard of the necessities of the situation and legal precedent. The orders appointing McKenzie receiver of these claims directed him to take immediate possession thereof; to manage and work the same; to preserve the gold and dispose of it subject to the further orders of the court; and expressly enjoined the persons then in possession from in any manner interfering with the mining of the claims by the receiver. By a subsequent order, and in the very teeth of the express prohibitory provision of the statute under which the court was created, Judge Noyes further ordered that the receiver take possession of, and that there be delivered to him, all personal property of every sort and description on one of these claims and in any way appertaining thereto. The receiver's bond in each case was fixed at only five thousand dollars, though at least one of these claims was then yielding about fifteen thousand dollars a day!

Thereupon, several of the parties thus held up by this highway procedure, upon proof and affidavits, moved the court to vacate these orders, which applications were denied, as were the petitions to the court for the allowance of an appeal from its orders granting the injunctions and appointing the receiver, the court holding that its orders were not appealable, and, in effect, that its jurisdiction in the matter was exclusive.

Upon the refusal of the court to allow an appeal, the Wild Goose and Pioneer Mining companies, which were represented by able counsel, secretly despatched to San Francisco, on a fast vessel, a special messenger bearing papers and affidavits disclosing the record of the court at Nome, upon which to base application to the appellate court, the United States Circuit Court of Appeals for the Ninth Circuit, for allowance of appeals and writs of supersedeas. This writ, which, in effect, nullifies the proceedings of the court below pending the determination of the appeal which it, the appellate court, has allowed, was granted in the Wild Goose cases by Judge Morrow, upon the giving of proper bonds.

Meanwhile the receiver business was in full swing, and McKenzie became known near and far as the "King of Receivers," or the "Big One." After a while, when the thing was becoming too notorious, the court evinced a certain delicacy of feeling by bestowing sundry receiverships upon selected friends of McKenzie, instead of handing them all over to the chief. Many mine-owners did not attempt to develop their ground, fearful lest, it proving rich, the receivership jurisdiction would be thereto extended. Charges and countercharges of bribery and corruption were rife, and the fight between the attorneys for the ousted parties and the "ring" became strenuous and embittered.

In the midst of the storm above referred to,—on the 14th of September,—an exciting rumor spread throughout the town that the writs from the appellate court had arrived; and this proved to be the fact. The Nome dailies (three of them) came out with such head-lines as "McKenzie Thrown out of His Job," "Death-blow to the New York Ring," and printed in full the writ commanding a stay of operations and a return of the property.

But McKenzie did not proceed to obey the mandates of the higher court, nor did Judge Noyes order him so to do, though they both had been served with all the requisite papers.

With the knowledge that the Circuit Court of Appeals was back of them, the Wild Goose people took possession of their mines. McKenzie, acting under the kind of legal advice that he wanted, maintained that the writs were irregular and void, and absolutely refused to deliver up the gold-dust which he had mined. Judge Noyes made an order merely staying all proceedings in his court, and refused to make orders compelling McKenzie to obey the writs and deliver the gold-dust to the appellants.

It became known that the receiver would attempt to withdraw gold-dust which had been deposited in the vaults of the Alaska Banking and Safe Deposit Company; and when McKenzie, in company with one of his "friends," made the attempt, he found himself surrounded by a detachment of the military and a number of the parties interested, together with their attorneys. As he was about to walk out of the building, an attorney stepped forward and stopped him, causing that remarkable person for the first time to lose his head and nerve. It looked for a moment as if there might be some gun-play, but this, fortunately, was avoided. All this happened when the storm was at its height, the miserable streets of the hybrid "city" knee-deep in mud, and when, without the semblance of a harbor, and open to the clear sweep and fierce attack of the Arctic gale, entire sections of the place were under water, and houses and wreckage generally drifting about. It was an excellent background for a dramatic incident.

The next step, therefore, was to proceed against McKenzie for contempt of court. The time was very short; for communication with that country ceases with the freezing of the sea, the latter part of October, and the distance to the appellate court and return is about seven thousand miles. At the last moment, just before we sailed, Samuel Knight (Yale, '87), who, in behalf of the Wild Goose Company, had been fighting the ring with great aggressiveness and skill, gave me, for his firm in San Francisco, the papers on which to base proceedings for contempt of court and arrest.

The storm and rain continued with unabated fury. It was impossible to get away. All the steamers had either put to sea or sought for shelter the lee of Sledge Island, to the northwest, and the shore was fast becoming a scene of wreckage indescribable. Tugs, lighters, floating piers, and all small craft lay tossed upon the beach. The sea was rising higher all the time, and soon buildings were washed away, and the front and lower part of the town were under water. All machinery which had rested upon the beach was buried in the sand. The entire sand-spit where we had first camped was washed by the surf. Lumber in great piles was strewn all along the water-front, and there were general loot and consequent drunkenness. The saying that the "Bering Sea is the graveyard of the Pacific" seemed verified. Certainly it was the most destructive and long-continued storm within my knowledge.

It was during this waiting period that we quite unexpectedly ran across V—— and R——. They had, it seemed, gone northwest in their boat for about thirty miles and tried the beach, with but little success. Then, having, as they believed, good information as to the rich strike which had been made at Bristol Bay, five or six hundred miles to the south, they had joined a party and gone thither in the small sailing-schooner which now lay high and dry upon the beach. Caught by storms either way, their experiences were of the hair-raising order, and it was only through the great skill and coolness of the captain and the mate that they were there to tell the tale. Bristol Bay had proved to be a fake, so far as gold was concerned. But V—— said that the streams were simply red with salmon, and that they found many walruses dead upon the shore, which probably, wounded by the natives, had come there to die. He brought to us a splendid pair of their ivory tusks, in which I have a special pride. Although he plainly showed the effects of his hardships, his cheerful spirit was unbroken, although the thought of having to return unsuccessful, but with hardly a fair trial, hurt his sense of pride. We told him of the Council City country, and it was suggested that he go back and winter with C——, which proposition was quickly accepted.

We dined once for experiment at the Café de Paris, a very clean and dainty-looking restaurant, quite incongruous with its surroundings. This was frequented by some of the French "counts," German "barons," and persons "representing capital in the East," for all sorts and conditions were to be met at this motley Nome. Really, our general apparel was quite out of place. The proprietor seemed the gentleman. He said that he came from New York, and that his chef was from the Café Martin. When we remarked that we had eaten at the Café Martin, with a French gesture of delight, he exclaimed, "Zen zere ees nussing more to be said!" Most of the things were very good, but we ordered beefsteak, about which we used to talk at Council. That portion of the menu was very well disguised. As an Alaskan friend of mine once remarked on a similar occasion, it was "so tough that you couldn't stick a fork in the gravy."

On September 17 the storm finally abated, and, after an earnest "good-by and good luck" to C——, my brother and I were rowed out to the big ship Tacoma. We left many behind who would have given their eye-teeth to be in our boots. It seemed almost too good to be true that we should be upon that stanch vessel, in good health, and with the near prospect of enjoying the delights of a home-coming. As is frequently the case when one has been counting the days which are to lead up to an anticipated pleasure, a certain apprehension that some mishap might occur to delay departure had been felt by us during these last days in Alaska. The Tacoma, which before the Nome excitement had been engaged in the China trade, was officered by Scotsmen and Englishmen and manned by Chinamen. Big and steady, with roomy decks, she was crowded to the limit of her passenger accommodations. Though the majority of the passengers had been unsuccessful, the fact of going home made all light-hearted and good-natured.

One of the first persons I saw was our Pullman porter friend, who greeted us grinning and deferentially, though we were still in that wholesome atmosphere where all men meet on equal terms and no one is better than the other until he proves it so. He said that he had been lucky in getting hold of a claim, and drew from his pocket a good-sized bottle pretty well filled with gold-dust. I learned further that he would "railroad" during the winter and return in the spring to Nome, having left behind a "good partner" whom he had so tied up that it would be impossible to be defrauded! I was flattered to know that on the occasion of his getting into a "jack-pot" (some trouble) he had hunted Nome after me for legal advice. He had many opportunities to get into "trouble" during the voyage home, as he gambled all the time.

Another acquaintance discovered on the ship was the little German pioneer "Captain Cook." We found him unkempt and disheveled, Rip Van Winkle-like, an object of commiseration, seated where he had been led. The old fellow was a very sick man, with dropsy. Quite friendless, he was unconscious of his surroundings, and looked up in a dazed, hopeless way when spoken to. It seemed as if he might not return alive to that "leetle wife in Kansas City." But later, he was taken out upon the deck and seated in the sun, which did him good; for one day as I passed he recognized me with a bright look, and inquired for my "brudder." It is to be hoped that this old man, who patiently had endured so much, safely reached his home with his gold, and received the welcome he deserved.

With bright, sunny weather after the storm, the Tacoma, not stopping to coal at Dutch Harbor, steamed through Unimak Pass, and, now in the Pacific, headed for Seattle over calm seas. Spending one beautiful day skirting the shore of picturesque Vancouver Island, and passing through the Strait of Juan de Fuca into that incomparable inland body of water, Puget Sound, the Tacoma reached Seattle on September 27, after a voyage of ten days. Thence to San Francisco we journeyed by rail over the majestic route which traverses the base of Mount Shasta.

Immediately upon arriving in San Francisco the papers were delivered to the lawyers. The day following, the Circuit Court of Appeals, with great astonishment, learned in what respect its mandates had been held; and, shortly afterward, two deputy United States marshals were despatched to Nome on one of the last vessels sailing for that port. Thwarting the ring by reaching Nome before the ice had closed communication with the outside world, they duly arrested the receiver and brought him before the court in San Francisco whose orders he had deliberately defied. Knight has since told me of his exciting night escape from Nome in a launch, and of his being picked up at sea by a steamer, as prearranged; for, fearful of the damaging evidence which he had accumulated, the ring did its utmost to keep him from getting away, employing as a means to this end the pretext "contempt of court"!

The trial of the contempt cases at San Francisco was long and hard-fought by both sides. McKenzie has had an array of able champions at every stage of the proceedings. Application to the United States Supreme Court was made in his behalf to oust the Circuit Court of Appeals of its jurisdiction to try these cases, but the application was denied.

On the eleventh day of February, 1901, the Circuit Court of Appeals at San Francisco filed its opinion and judgment in these contempt cases. The long and able opinion delivered by Judge Ross covers the entire history of the Wild Goose litigation, and incidentally refers to Mr. McKenzie's relations with the Alaska Gold Mining Company. After referring to and commenting upon the various proceedings, which are summarized as "this shocking record," and disposing of the technical points raised by the receiver's counsel, the Court say:

"The circumstances attending the appointment of the receiver in these cases, however, and his conduct after as well as before the appointment, as shown by the record and evidence, so far from impressing us with the sincerity of the pretension that his refusal to obey the writs issued out of this court was based upon the advice of his counsel that they were void, satisfy us that it was intentional and deliberate, and in furtherance of the high-handed and grossly illegal proceedings initiated almost as soon as Judge Noyes and McKenzie had set foot on Alaskan territory at Nome, and which may be safely said to have no parallel in the jurisprudence of this country. And it speaks well for the good, sober sense of the people gathered on that remote and barren shore that they depended solely upon the courts for the correction of the wrongs thus perpetrated among and against them, which always may be depended upon to right, sooner or later, wrongs properly brought before them." It is then adjudged that the receiver did commit contempts of court, and that for the said contempts he be imprisoned in the county jail of the county of Alameda, California, for the period of one year. In conclusion, "the marshal will execute this judgment forthwith."

In view of this deliberate adjudication and severe arraignment by a federal court of rank next to the highest tribunal of the United States, and considering also the earnest efforts made at Washington and the demands of the Pacific coast newspapers for the removal of the weak and unscrupulous judge who had manifestly served as the tool of Alexander McKenzie, his recently dethroned receiver, it was natural to suppose that effective measures would at once be taken to rectify so great an error as his appointment had proved to be. But, strange to say, this reasonable expectation was not verified.

In the United States Senate, on the 26th of February, 1901, an attempt was made to exonerate Messrs. McKenzie and Noyes. Senator Hansbrough of North Dakota characterized the former as "in every respect an honorable and responsible man," and read a letter which he had received from Judge Noyes, in which the latter elaborately declaims how honest and upright he is and always has been. Senator Pettigrew of South Dakota championed McKenzie as a man of "character," and eulogized Noyes as "the peer of any man who sits upon the bench in any State or Territory in the Union." But Senator Stewart gave the whole affair a very thorough airing, and caused to be printed in the "Congressional Record" the complete history of the receivership proceedings above set forth, together with the opinion and judgment of the Circuit Court of Appeals.

One of the last official acts of Attorney-General Griggs was the preparation and transmission of charges against Judge Noyes, which reached their destination in June, 1901; and as only a reply with explanations was required, Noyes had a lease of official life during the mining season of 1901. His answer to the charges preferred against him was in the nature of a general denial, and a justification of his conduct in every respect.

Despite, however, its various handicaps, the Nome country, it is estimated, yielded in the year 1900 between five and six million dollars in gold—almost as much as was paid to Russia for Alaska in 1867.

Thus far no well-defined quartz ledges have been discovered, but it is not impossible that such may yet be found. Once on a steady basis, it will from year to year, like the Klondike, increase its output until, finally deprived of its only attraction and drained of its sole asset, it shall again assume the dreary, uninhabited state in which it was discovered.

Lieutenant Jarvis estimates that, in addition to the two thousand who wintered there, eighteen thousand people were at Nome in the summer of 1900. Probably six thousand remained in the country throughout the following winter, well provided for, as the government at the close of the mining season transported the remaining needy and destitute.

Before communication with the outside world closed with the freezing of the sea, about the 1st of November, C—— got out a letter which informed me of his safe arrival at Council and his settling down in the new quarters. It seems that not enough was found of the Mush-on at Chenik to make a toothpick. At a meeting of the "city fathers" at Council the nomination for president of the Town-site Organization had been extended to C——, which he said he had at first declined with becoming modesty; but, finally, under pressure, and as a "public duty," he had graciously yielded and been duly elected. This news of my partner's accession to so high a dignity rather led me to indulge an expectation that, upon my return, I might be received with civic honors.

PART II
1901