The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-12-07
COUNCIL HEARD
SPECIAL OPINION
SPECIAL OPINION OF AUBREY
LAWRENCE HELD THAT VALID.
rTY or CITY ORDINANCE
BE TESTED nv COURTS OF COM
PETENT JURISDICTION.

g ENI JURFSDlC TON.
'# 3~s 'As' --. r"H %#s
The special opinion OF Aubrey Law
renee, requested by the city council
on whether under title 5 of the
city o. ordinance the =, city coun-
Gil has the right to try a city
officer on charges for his removal,
virtually conceded with those already.
rendered by City Attorney Smith and
Alderman Cupler at a previous ses-
sion of the council.
The meeting of the council was
brief last night, lasting only a little
over an hour. The chamber was
packed and people were standing clear
out to the head of the stairway at the
end Of the corridor. '
The anticipated fireworks did not
take phase, as there was nothing much
to do in the case of the chief of po-
lice after the reading of the temporary
prohibition by Judge Pollock Ct the
district court, restraining the council
from taking any action on the matter
until after the hearing in court next
Wednesday morning before the cour:.
a.. To Select Counsel.
On motion of Alderman Stewart. a
committee consisting Of Aldermen
Cupler, Cooper and Sonquist was Ap-
pointed to engage an attorney to rep
ISS0IlL lHS COuLCllIu6n al lila CuuLb
hearing next Wednesday,. Mr.. Cup
Ter stated he did not care to act on the
committee, and neither did Mr.. Son
quist. Mr.. Stewart said, inasmuch as
the city attorney had already rendered
an opinion on the matter to the coun-
Gil, he was necessarily biased and
could not represent the ccuncilInen,
so that they should secure counsel
who could. He did not care who was
retained hitt wanted coma one
Mr.. Smith declared Mr.. Stewards
position was sound and that he did
not believe the council Would ask him
to act when he had already expressed
himself, that it would not be fair,
either to the council or to himself. Mr..
Stewart said his motion was in no
way a reflection on Mr.. Smith, ana
moved as a substitute that the city
attorney be included on tho committee.
This, however, was withdrawn and
the original Stewart motion calling
for the appointment of the above
named gentlemen, despite their pro-
tests, prevailed.N They will select an
attorney this afternoon.
Chief Not Exoneratsd.
Alderman Mcdonald stated he want
ed to correct an erroneous impression
for which the press was, perhaps, par
TALLY responsible, that the council had
LCu INK IA l. OlLNS ANCSAC AANAA&
the charges preferred against him.
Neither the council nor the special
investigating committee ~eXonerated
anybody" said Mr.. Mcdonald, II
think Mr.. Cupler, chairman OF that
committee, will bear me out in that
statement. The report of the commit
tee neither preferred charges against
any n o exonerated anybody. AND
neither did the council.
THE ONLY generation given the
chief of police" he continued, address
ing Mayor Sweet himself, was your
hohor's communication to the council.
That was the only thing read at the
council meeting which GENERATED any
body"
Mr.. Cupler upheld Mr.. Mcdonald in
his statement. There was a brief
wrangle over whether the testimony
taken by the special investigation com
mittee should be publicly read at the
meeting last night. Mr.. Mcdonald
was in favor of its being cead then
and there. .
I'VE should no read this before the
hearing in court next Wednesday,"
declared Mr.. Stewart. 1--WE want to
give this man a fair trial, and the
reading of that testimony might pos
sibiy tend to influence the member
of this council way or the other"
The reading was voted down by 9 to
5.
Cummings Took Seat.
P. H. Cummings, the newly appoint
ed alderman from the Second ward
to fill the ~unexpired term OF Mike
Bolene, was present and took MS seat
last night. Following the business re-
lating to the chief of police, several
estimates were allowed and Mr.. Jar
| dine submitted a verbal report from
the light committee. Mayor Sweet
left the chamber earlier than the regu-
lar adjournment and Mr.. Jardine pre-
sided until the conclusion.
The Lawrence Opinion.
Following are ne salient points ex-
pressed in the opinion of Aubrey Law
renee concerning the validity OF the
ordinance giving the council the power
to try the, chief on the charges pre-
ferred with a view to his removal
from office:
AS to the validity of title 5. Of the
revised ordinances of the city or Far
go, which ~purports to give power TO
the city council to try elective and APP
pointive officers, n we coneiaae ina
such portion of the ordinances Is not
authorized, especially as to elective
ohicers, because of a lack of power
existing in the city council and that
considered as a whole and OF
a dealing with both elective and ap-
pointive officers, and with officers who
could well be classed as municipal Of
ficers, that such portion Of the ordin-
ances of the city will not stand the
test of law, and upon that broad prop
osition, our conclusions are as fol-
lows:
First, in the absence of constitution
al or legislative action a municipal
corporation has the inherent power to
remove it's officers through proceed
ings before it's governing body.
Second, that a municipal corpora
ton, organized under the state of
North Dakota, has the power of re-
moving its officers under the general
welfare clauses of the powers granted
through proceedings before it's govern
ing body, unless expressly or implied
ly restricted by constitutional or leg
islative action.
Third. that both the constitution and