Bemidji Daily Pioneer Newspaper, December 15, 1909, Page 1

THE BEMIDJI DAILY PIONEE VOLUME 7. NUMBER 204. BEMIDJI, MINNESOTA, WEDNESDAY EVENING, DECEMBER 15, 1909. " MINNESOTA HISTORICAL . 30CIETY. TEN CENTS PER WEEK. ORDERS CERTIORARI WRIT |- DISMISSED, AS EXPECTED Judge Wright Grants Motion of Judge Spooner to Vacate, Set Aside and Squash the Writ Secured by J. J. Opshal, in Re the Soo. Judge B. F. Wright has filed an order granting the motion of Judge M. A. Spooner to discharge and quash the so-called writ of certiorari, wherein Jens J. Opsahl of this city wanted a review of the actions of the city council of thc city of Be- midji in vacating a portion of the “Mill road” in order to provide a right-of-way that the Soo Railway company may enter the city of Be- midji in building its Plummer to Moose Lake. The order and memo which was issued by Judge Wright is as fol- lows: line from “State of Minnesota, County of Bel- trami—In District Court, Fif- teenth Judicial District. “Jens J. Opsahl vs. City of Bemidji, et als. “The above-entitled matter came on for hearing before the above- named Court, at the court house in the City of Bemidji, in said county and state, on the 7th day of Decem- ber, 1909, at 10 o’clc 'k in the fore- noon of said day, up the motisn of the mayor, city cou.cu, city attor- ney and city clerk of said City of Bemidji, and the Minneapolis, St. Paul and Sault Ste Marie Railway company, to set aside, vacate, dis- charge and quash the so-called writ of certiorari, issued in these proceed- ings; each of said parties severally appearing specially for the purpose of making said motion. “Said motion was based upon ten separately-stated grounds, all of which appear in the written motions duly filed herein; “And the Court having read the petition for said writ, and the said writ, and heard the arrguments of counsel, and being duly advised in the premises: “It Is Hereby Ordered, that said motions be and the same are hereby granted that the said writ discharged and quashed. Dated this 9th day of December 1909. “B. F. Wright, Judge. “Memo, “Some question was raised as to the form of the writ herein, but not seriously urged at the hearing, and has not been:Considered, “The petition’ and writ: both set forth quite fully the history of the proceedings of the . city council sought to be reviewed ‘under pro- | ceedings, and copies of the resolu- tion, approval thereof by the mayor, and several sections of the city charter relating theuto, are attached and made a rpart of those papers, so that the whole matter_was. laid before the court as” fully as. could have been done had a return to said writ been made and the commands thereof fully complied with, “In other words the petition and { writ on their face show all the defects claimed by the- petitioner to exist in- the proceedings of the council, and thus it appears to me the court is enabled to determine all the issues involved in the case upon this motion to quash as fully as could be done had those proceedings been certified and returned as required by the writ. “One of the points raised by the petitioner in the petition and writ was the approval of the resolution by the mayor the next day after it was adopted by the council, instead of allowing four days to elapse before approving it. The charter provision as to this matter is as follows: “Charter III—Sec. 3:; No ordi- nance or resolution of the City Council shall be signed by the mayor within four days after the same is presented to him, and if the same shall not be returned by him on_ or before the 7th day, (Sunday ‘ex- cepted)after it shall have been pre- sented to him, it shall have the same force and effect as if approved by him.’ “It appears to iié that the ap- proval by the thayor of the resolu- tion herein involved ut the time. he did, while an lrregularity, is not fatal in the validity of the resolution if otherwise valid.. . If the approval amounted to anything. at the time it was made, the petitioner wasin no way prejudiced -thereby; on the other hand, if the. mayor acted without authority, then the approval amounted to nothing and the matter would’ stand just as though he had not returned it at all, in which case after the élapse of seven days it would bave the -same|, force andeffect as if approved by him. “Salino vs. Neosho, 27 L R A 769. “There is practically no dispute as to the law relative:to the scope and office of Certiorari in our state. It is no longer confined. to the nar- row limits of the common law,and some states of the Union-have gore much further then our own in broad- ening its scope. “In Minnesota, however, the writ may be used in certain cases to review the proceedings of special tri- bunals, boards, commissions and-offi- cers of municipal corporations.But in these cases it is confined to such acts as are strictly judicial or quasi- judicial in their nature. “Christlieb et als; vs.| County of Hennepm, 41 Minn,'142." “Moede vs. Cuunty of Stearns, 43 Mlnn 312, “And further it is well establlshed that the party invoking the writ must show some direct, peculiar.or particular interest iri the proceedings sought to be reviewed, and'that he will suffer a special injury beyond that which will affect him in com- mon with the public or others sim- ilarly situated. Apd" this rule is especially applical where another sufficient remedy is available for the reveiew of an errgneotis deétermina- tion, or the restriction of excess of jurisdiction. . "6 Cyc. 738, 768, “State vs. Lamberton, 37 Minn. We wilt -be glad to weigh your Christ- mas packages for mailing boxes. $4.50. Stationery High grade station- ery in fancy Christmas Prices 75¢ to Toilet fo $9. $1 to $6. to-$4. Toilet Sets from $1 Manicure Sets from Shaving Sets from $1 - Christmas Suggestions Manicure Goods Both travelling and dresser sets. suitable and servicable Prices from $1 to Sets gift. $10. Bar Tiie of Ghrist- | mas Seals and | Cards Is very come plete A very Fountain Pens Candies Cigars Plain and fancy A gift that is appre- All the well known fountain pens---all very | ciated by everyone. | brands at these prices: figfi%xuggionwgfl We carry only the fa- | Boxes of 25 10c cigars, ssthe kind that s I;b_ mous Johnston and | $2, 5¢ cigars $1. Boxes Weber lines, 75¢ to $4.00. Leather Goods Our line is complete. of 50 10c cigars, $4, Sc cigars $2. Perfumes In fancy packages from 50¢ to $3. . Bulk perfumes, 50¢, 75¢ and $1 per ounce. Sachet powder in bulk and ounce packages, both domestic and imported, 50¢ to $1 per ounce. Cormontan & Hanson DRUG‘GISTS i BEMIDJI, MINNNSOTA solutely guaranteed. Prices $2.25 to $6. Remembrances If vou desire to give some small item to show your friends that you have not forgotten them, we have calen- dars, book marks and an endless variety of items that will make suitable gifts, at 15e, 25¢, 40¢, 50c¢ and up to $2. ; We have a very large assortment of bill books, purses---and ladies’ hand bags---in black, morroco and alligator. Prices range from $1 to $15. POSTOFFICE CORNER 362. - ““Some jurisdictions have modified thése ‘general rules, notably the Courts of New Jersey, but even in that state, the writ would be refused whe;:e th&act tobe Jreviewed was, Ultra. Vires,” to'such an: extent. that it would ‘not protect the- beneficiary of the pnv_llege in acting upon it. “Oliver .vs. Jersey City, 42 Atl 782, ) “With these principles. of law in mind the following material ques- tlons arise: Fu’st, Was the act of the City Council in adopting the ‘resolution granting to: the Railway company permission to use a part of the road involved herein strictly judicial or quasi-judicial in its nature? “Second, Has the petitioner shown himself .to be diredtly or peculiarly: interested in the matter .to be ‘re- viewed, and that he will suffer a special injury beyond tnat which will affect him-in comton with the public or others ‘similarly situated? Third, Is there no other suffi- .cient remedy available whereby he may protect whatever interest he 'has’ “It appears to me that all three of these questions must be . answered in the negative, -If either one of them - should be:'so answered the Writ should be quashed. * ‘““As to the first question, I ‘can conceive - of -no act of the city council ‘“that would be strictly legislative in its nature if the act here in question . is not such a one. ‘It may besaid generally that the exercise of judical functions is to determine ‘what the law is and what the legal rights of the parties are in respect to a matter in coh: troversy.’ “State vs.-Dun, 86 Minn. 301. -y most, if not all, of the Minne- 'sota cases, where certiorari has been [ beld ™ to+ lie - to } . municipalities, those acts have been’ review ~acts_-of such as were to be done-on notice| 1| and after ‘hearing of parties, where a controversy existed and a sort of trial was contemplated, such as re- moval from office for cause, laying out a street or highway across private [Continued 'on Last Page.] EXGELLENT BILL AT THE NEW BRINKMAN THEATER gician, Appears for the First Time Here. The bill at the Brinkman Family DELL RENO packed mighty by’ enthusiastic patrons, eager to witness the excellent program. The Campbell Clarke Sisters, in their comedy character ‘act, ‘A Bad Penny Relurns(” bring applause lafter -applause, while Post & Gibson in their comic dramatic sketch, “Married Three Weeks,” keep the house in an uproar of laughter. Dell Reno, appears tonight for the first time. Reno is'a magician and coin mampuhtor, is a master in his line and his routine of - tricks bemg like a gigantic Chmese puzzle A imiscellaneous collection of coins from nowhere and everywhere, called for from" his pockets. Those: wishing a rare treat by wit- nessing something out uf the ordm- ary should ‘not ‘miss: thi 3 .voicey . accompanied by tears, he Show Making Big Hit.—Dell Reno, Ma- | 5 Theater this week is making the hit | ¥ of the season, and the house is being | & and among othérs, 4 marvelous card{| trick in which'he produces any card i “NOT GUILTY” SAYS THE ~JURY IN FOURNIER CASE Jury at:Brinerd Retired at 4:30 Yesterday Mtorioon, and - Is Said to Have Reached Verdict At 2 This Morning.-- Another Indictment Against Fournier, 0 Brainerd, Dec: 1510 'a. m.— (Special to Pioneer.)—At 9 o’clock this morning: the: juryia the Four- mer case brought in-a verdxct of not guilty.” “The jury retired at 4:30° o’clock yestexday afternoon,’and itis stated that they reached a verdict at 2 o’clock this morning; that " they then retired for the reimainder of the night, preferring to not' return the verdict ‘until court couvened this morning. When the news spread over the city this morning that a verdict had been reached in the Fournjer case, a large crowd assembled in the court oo to ascertain Whethcr Fournier bad again been found guilty of the charge of murdering *N. O. Dahl or would be acquitted. Fournier was brought into the court ro6min the custody of Sheriff Hazen of Bemidji and he eyed the jury rather anxiously prior to the returning of the verdict. There was a death-like silence when Judge McClenahan asked for the reading of ‘the verdict. When the words “not guilty” were read Fournier sank back in his'chair and was greatly affected. After the ver- dict had been recorded - Fournier approached the.jury box and shook- hands heartily with every member of ‘the ]ury,and in a choked and broken hentt,llywthanked them' fof" thelr ver- dict of “not guilty.” JFournier will be ‘brought to Bemidjitonight in the custody of Sheriff Hazen, Fournier stood the trial very well ‘and his— fortitude never deserted "him during the trying ordeal of testifying in his own behalf and answering pointed questions which were ‘directed to him during the cross-examination. Chester - McKusick, county attorney for , Beltrami county, ‘l'against Fournier which included his summed up the case for the: state, yesterday afternoon. He made a a clean, logical and convincing talk without effort or prejudice to sway the jury. C. W. Scrutchin, attorney for Fournier, made a passionate plea for the life of his client. He ridculed the testimony of the leading wit- nesses of the state and claimed that some of them were deliberately lying. § Much interest was shown here as to what verdict the jury would re- turn and there were inquiries all ‘night at the court house as to’ whether a verdict had been reached. It is learned from Brainerd that Sheriff Hazen will bring Paul Four- nier to Bemidji tonight or tomorrow morning and will hold him in the Beltrami county jail until he is arraigned to answer to the charge of having killed Aagot Dahl, in -March, 1904. Fournier was indicted in' April, 1907, on the charge of having killed Aagot Dahl, the indictment being a part of the true bill returned having killed N. O. Dahl. The Aagot Dahl indictment has never been.considered in open court and Fournier has never been ar- raigned to answer to that charge. ., The death of Aagot Dahl was, if . possible, more brutal and horrible than the taking off . of her father. The girl’s body was allowed to lie in a meadow and was not discovered for many months after the tragedy. County Attorney McKusick states that Fournier will be arraigned as soon as he arrives in Bemidji, pro- bably tomorrow. BUY ICE BY THE LOAD. We delieverice direct from the lake to any part of the city. Bemidji Ice Co. Women's and Children’s fulfillment of a need or as welcome. Plain; braid<trimmed or cloths, Meltons Kerseys, Double-Faced Materials and Mixtures. Sale Prices Run Like This $5.75 Coats at $3.85 $1.50 Coats at ' $5.00 $10.00 I}uat.sv at - $6.65 General Hints in Rich Furs: are a princely Gift. ments, Silk Petticoats, Waists, Bath Robes, Kimonas, Silk ' Hose—and Silk Underwear. Scarfs, Auto Veils, Mufflers, Bags, Combs, Belt Pins }and Nuvelty Jewelry. 'Visit this Exclusive Women’s and T. J. CRANE & CO. Ready-to-Wear Garments Rollicking school girls are always eager for some- thing to wear and whether it comes from the ordinary We have more Girls’ and Children’s Coats in this store than we've :ever had before. all colors, materials and sizes. this general One-Third Reduction. Children’s Store Your far away gifts should .be on their way. a practical gift, tis always Junior Coats of Not a coat escapes novelty styles in Broad- $12.00 Coats at - $8.35 $15,00 Goats at $10.00 -$18.00 Coats at $12.30 Things to. Give Tailored Gar- Also Gloves, Head