Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1903-05-28
His Honor's Statement In Re.
lation to Asphalt and Brick
Paving Controversy
RIGHT OF DEs MONIES COUNCIL
Judge Howe Decided Il Had a Right to
Proceed to Get the Best Paving y.
Was Possible to secute-certain Ac-
tons Not Subject to Control Of the
Court.
Special to Times * epublican.

Special to Times Republican.
Des Moines, May 2S.-The recent de-
cision of the district court of this coun-
ty delivered by Judge James A. Howe,
in the cases involving the controversy
between asphalt and brick paving in
Des Moines, has q significance reach
ling out to other cities of the state where
asphalt and brick have come into COM
OF judge Howe has been carefully ex
amined by good lawyers who are en-
tirely disinterested and they say that
his conclusions are not likely to be dis
turbed by any other court. He decided
that the council of Des Moines had d
right to proceed to get the best paw
ing that it was possible to secure. that
in fact the city has about the same
rights in the matter of buying what it
Because of the great interest in the
decision the T.-R correspondent has
secured from Judge Howe the following
clear statement of just what he de-
cided in the case at issue, and especially
in relation 10 the matter of asphalt be-
ing controlled by a trust.
The city council is invested by law
With the obligation to discharge GER
tain duties. Acting within it's province
its Judgment is absolute and is alone
responsible for its acts In such case
1T is wholly immaterial whether its
judgment comedies with that of the
courts or otherwise. 1t is only when
1T exceeds its province, when ii goes
beyond its sphere, that it's actions are
subject to the control OF the court.
The abutting property owners have n
voice In determining whether the i'm
provement shall be made when a ma
jority OF the city council but less than
three fourths of all Of its members, IA :
Nor the Improvement, and then only
whether the Improvement shall be
made. 1t does not extend to a choice
OF material. Such choice rests in the
sound discretion OF the council. a mo-
ton to fix the time for hearing of a
resolution Of necessity, and directing
the publication Of the notice thereof re-
CURED by. law, does not come within
of the code, and may therefore be
adopted by the affirmative vote of q
majority of the quorum. The fact. that
the city has reserved the right. at
its election, to use brick instead of
asphalt, next to the rails of the street
railway tracks does not make TIE con-
tract void. 1t may not elect to use any
brick. in which event the pavements
would be strictly asphalt pavement.
The parliamentary tangle over the at
tempt to amend the resolutions OF ne
cessity, SO as to include any and all
kinds of asphaits, did not inva!tdate the
resolutions OF necessity, for the reason
that at that time there was nothing
pending before the council which it
could amend. Absolute perfection is
not generally found in the proceedings
of public bodies. and even relative
perfection is not usually listed among
the attributes of city councils The
proceedings of the city council meet
the requirements of the law, and are,
therefore, valid. Trinidad pitch lake
and Bsrmudez pitch lake asphalt are
each high grade asphalt. There may
be better, but none have been more
used. High grade material
is not the only requisite to q good
Care and skill in the prep
aration of the materials, and in laying
the same, are one Of equal Importance.
1t is only When these combine that a
good pavement is the logical result. In
letting The contracts the city had q
right to take into considerat ton the
manner in which the work would be
done, as we'll as the materials to be
used. The municipality is entitled to
the best that may be had, when it
wants it. and is willing to pay for it:
statute, in the absence of fraud. and In
the exercise Of an honest discretion
may purchase what it wants Trinidad
pitch lake and Bermuda pitch lake
asphalta are commercial products. The
is that every commercial
product may be had In the open market.
In these cases the evidence shows there
was actual and boni fide bidding real
and genuine competition, for the con-
tracts. The provisions of the statute
in relation to letting the contracts to
the lowest responsible bidder were full
iy complied with. The evidence does
not show that the business of the Ma
tional Asphalt Company is being con-
Quoted in violation of law. That COM
pany is now in the hands of receivers
and its business is being conducted un-
der the orders of the United States cir
cult court. This court can not presume
that the United State circuit court is
the business of the Nationa!
Asphalt Company contrary to law in
the absence of proof to that effect and
Eln q hSHncsA Of such ehnu.iIasr |