The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1904-03-11

| the limit of Indebtedness imposed upol
defendant by the general laws of tn
State of Minnesota and the provision
of said chapter AZ and in order to pa.
the same, it will be necessary for sal
defendant to levy tax upon all the tax
able property therein and the tax so lev
led will be far In excess of the highes
rate authorized by law. That at ant
prior to the ordering of said work ant
the execution of said contract and at al
times thereafter the Indebtedness of salt
defendant, exclusive of said contract "C''
did and still does far exceed the limit
of Indebtedness imposed by the genera
laws of the state of Minnesota and the
provisions of said chapter AZ. That
defendant by an appropriate ordinance
duly adopted by the common council AND
duly filed pursuant to the provisions OF
the law hereafter mentioned did adopt
and make applicable to defendant Chapt
er 204 of the General Laws of 1898 for
the State of Minnesota in May 1895.
25. Defendant further alleges that the
charter of defendant makes provision for
the levying of local assessment to pay
for public improvements similar to that
made upon Broad street upon property
abutting upon and benefited by such i'm
provement and in every case where pub
lie improvements of such nature are ord
cred and contracted for payment therefor
is to be made from such local assess
ments and not otherwise except that
upon the unanimous recommendation of
the board of public works, the council
may order the making of any improve
ment and pay such proportion of the eX-
penses out of the general fund as said
council by a two-thirds vote of all its
members may determine That said
board of public works never recommend
ed that all or any part of the work and
improvement upon Broad street be paid
out of the general funds of defendant,
and the council of defendant never voted
or determined to pay all or any part of
such expense out of the general funds of
defendant, all of which was at all times
well known to plaintiff. That the board
of public works, common council or any
other officer or agent of defendant have
no right or power to contrct for the pay
ment of any public Improvements out
of the general funds of defendant eX-
cept as above stated, or to make pay
ment therefor in any manner except by
local assessment, or to incur any debt
or liability in behalf of defendant, i'm
pose any obligation thereon, or pledge
the faith and credit of defendant for any
such purpose
26. That as hereinbefore alleged at
the time of the making of the contract
exhibit SOP and at the time the mode
and time of payment as set forth in the
specifications upon which bids were ask
ed were changed and amended as herein
before set forth, the temporary injunc-
ton was then in force in the action
brought by John Diamond hereinbefore
to. That such change and
was made for the purpose of
evading the terms of such injunction,
avoiding conflict herewith, and for the
purpose and with the intent to so change
and modify the specifications and to
draw and execute said contract exhibit
"C", that no debt or pecuniary liability
whatsoever would be contracted by or
imposed upon defendant for the making
of the improvement in question, and that
the plaintiff would be required to and
would waive any right and claim what
soever against defendant upon said con-
tract and look solely and exclusively to
local assessments upon property to be
benefited for its payment for the work
to be done. That said contract was
drawn with such purpose and intent and
in effect so provides. Defendant denies
that it has refused, to attempt to raise
by special assessment any sum or amount
out of which the claim of the plaintiff
could be satisfied. Denies that plaintiff
has ever requested or demanded that any
assessment be levied and denies that
plaintiff has ever requested that all or
any portion of the amount demanded in
the complaint be paid by the defendant.
In this connection defendant alleges that
by the terms of the Injunction in the
Diamond case hereinbefore referred to
defendant and all its officers, agents and
were perpetually restrained and
enjoined from appropriating, paying out,
or causing to be appropriated or paid
out any funds of defendant for the i'm
of Broad street or any part
Thereof under said contract exhibit 'C',
or under any contract, agreement OF I'M
with plaintiff and from MAX
ing, issuing or delivering the bonds, or
ders, certificates of Indebtedness or other
evidences of Indebtedness of defendant of
any kind whatsoever, for the payment of
such work or any part thereof, reference
being made hereby for the full text and
terms of said injunction to the pleadings,
decision, and final judgment in said Dia
mond case. That by reason of the facts
aforesaid plaintiff is not entitled to
maintain this action, but its remedy, if
any, is by mandamus in an appropriate
tribunal.
81. Further answering defendant al
leges that no work or improvement of
Broad street was ever considered, con-
templated or ordered except the paving
thereof thirty feet in width, and the
curbing and guttering of said street in
with such paving. That the
amount of asphalt paving actually laid
within and upon the improvement as
considered and contemplated and embrac
ed within the plans and specifications
and the contract exhibit "C' was and is
Ia, 500 square yards and no more That
the actual amount of curbing and gut
tering laid in and upon the improvement
as considered and contemplated and en-
hraced within the plans and specifca-
tions therefor and the contract exhibit
''C' was and is $3.50 lineal feet. That
the reasonable worth and value of such
paving did not and does not exceed $160
per square yard and the reasonable worth,
and value of said curbing and guttering
did not and does not exceed $3.50 per
lineal foot. That any asphalt laid or
curling and guttering laid by plaintiff
except as above alleged was wholly out
side of the plans and specifications for
the improvement of Broad street and
outside of the terms of exhibit ''C' and
was done and perforemd without any
pretense, semblance or claim of author
ity by plaintiff.
2S Defendant further alIarac