The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1903-03-27
.REHEARINC ASKED FOR
The City Presents Petition for Same
to the Supreme Court.
Six Grounds Of Error Are Alleged
BY; the City.
Charges in Contract Not Beneficial
to the Contractor.
No Lack of Competition on the
Asphalt Used.
From Tuesdays Daily.

City Attorney Daley went to st. Paul
yesterday to file petition for re
hearing before the supreme court on
behalf of the city in the case of John
Diamond VS.. the city of Mankato, other
wise known as the Broad street paving
case. The petition is based on the fol-
lowing grounds:
First. The court erred in overlooking
certain provisions of the charter of the
city of Mankato, viz: If for any cause
the proceedings of the common council
or board of public works OF any of its
officers may be found irregular OF de-
fective, whether jurisdictional OF other
wise, the common council may order
a new assessment from time to time and
as often as need be until sufficient sum
is realized from the real estate bene-
fitted by such improvement to pay all
costs and expenses incurred thereby !;
it being the true intent and meaning OF
this act to make the costs and expenses
OF all public Improvements provided for
in this chapter, local to the city OF
Mankato, payable by the real estate
benefited by such improvement, etc"
Other sections provide that reassessment
may be made in all cases where any
court shall have for any cause set aside
assessments made; and Chat "every as
sessment for a purpose authorized by
this title shall be valid and effectual,
notwithstanding any irregularity, omis-
sion or error in any Of the proceedings
relating to the same"
Second. The court seems to have
erred in the matter of fact as to what
the evidence shows as to the specifi-
cations for payments for work, and the
time in which such payments should De
made, and as to the effect of the change
made in the contract. The changes made
in the specifications are not beneficial
to the contractor, but against his inter
ests.
Third. The court erred in finding that
'the formula prescribed in the speci-
fcations for the making of the pave
ment was applicable only to Trinidad
lake asphaltum, and for this reason con-
tractors were deferred from bidding on
the work."
Fourth. The court made an error in
finding: '"The evidence tends to show
that in other material respects the spe-
cifcations were not followed in the con-
tract, and that the changes were bene-
fetal to the contractor"
The specifications construed by this
court in another case are almost identi-
cal with the specifications and contract
in this case. The contract in this case
was copied verbatum from the present
St. Paul contracts, and the specifications
in regard to guarantee, must be con-
sidered the same as the specifications
considered in the case of state VS.. dis
trict court just referred to.
Fifth. The court below erred in find
ing: 'That there is asphalt other than
Pitch lake and Bermudez asphalt as
available and equally as good for paving
purposes as Pitch lake and Bermudez
asphalt"
The only evidence to sustain this find
ing is the testimony of the witness Bell.
whose observation of land asphalt and
Pitch lake asphalt is less than a year
This testimony was contradicted by that
of the witness Mclaughlin and Brennan.
who have been in the asphalt business
ten and fifteen years respectively. Engi
neers of different cities tlso supported this
last evidence, as ascertained by CORES
pondence on the part of the board OF
public works. In face of the overwhelm
ing testimony that the Pitch lake as
phalt was superior to the land asphalt
the above finding of the court below is
very discouraging to the city officials
who desire to obtain the best quality OF
asphalt for street improvements, and
we think that it ought not to be sus-
tanned.
Sixth. The court below erred in find
ing: 'That there are persons, firms OF
corporations seeking contracts for paw.
ing streets in Minnesota and elsewhere
who cannot procure Pitch lake or Ber
mudez asphalt"
There is no word of evidence in ths
whole case to that effect. The witness
Bell, for the R. F. Conway Paving com
pany, testified that his company coult
not bid on account of the specification
calling for Pitch lake or Bermudez as
phaltums, but it was because his com
pany used the land asphaltum, and moi
because they could not get the Pitch lak'
or Bermudez.
The supreme court will examine THU
petition, and if it decides to refuse i
the matter will be ended. If, however
it decides to grant it, then the case vii
be reargued, either at the April or DC
tober term.