Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1904-10-15

ABBOTT is MADE DEFENDANT
Suit is Brought in the Name of the
Sixth Ward Councilman for the City
Of Marshalltown-BiIIs for Hardware
Are InvoIved-siee Explains Reasons
For Bringing the Action.

John A.. Sieg, councilman from the
sixth ward, filed an action in the dls-
trict court late Friday afternoon, IN
which he Abbott & Son and Il. c. Ab-
bolt are named as defendants. me
plaintiir alleges to be acting for the
city of Marshalltown, and in the nc-
tion. which will be made n test case In
the supreme court. 1t is intended to es-
tablish whether or not councilman In
terested In bills contracted during an
ordinary course OF trade collect
from the city.
The plaintiff in the case sets forth
the claim that the defendant. l.. c. AID
bolt is a stakeholder and officer in the
INCORPORATED firm Of Abbott & Son, do
ing n hardware business In Marshar-
town. 1t Is also cited that l.. G. Abboll
Is a member OF the city council. On the
Sth day OF August, 1904, 1t is alleged.
the council ordered the payment OF 4
certain bill for $3.50. in favor OF Abb
bott &. Son, for merchandise sold the
city. ON September IL another bill for
SOC. IS was ordered paid the same firm
The plaintiff further alleges that ne
brings the suit for the city. that the
money appropriated to the defendants
may be restored to the treasury of the
city. He asks that In entering judg-
ment against the defendant the court
not use his name, but that OF the city.
A Judgment for $110.15, and costs, is
prayed for
The action commenced against Abb
bott q Son and L. G.. Abbott, according
to Mr.. Sieg is brought for the purpose
of testing the case of sales made IN
the ordinary course of trade" as ex-
pressed by the city and council. 1t
was Mr. Abbotts own suggestion,
says Mr.. Sieg, made In the council
meeting held on the 18th day Of Sep
tember," that I, cease to bring up the
same objection every meeting, as to
counclmen dealing with the city, but
that go into the courts and test It.
Mr.. Sieg's contention Is that such
sales are. contracts and hence, under
section 66S of the statutes. providing,
THAT no mcmber Of the city council
shall be Interested, directly or indirect
",
the profits thereof or services to be
performed for the city" His position is.
and he claims to be sustained by de-
cisions in other states, the question
never having been before the Iowa SUI
preme court, that these are implied
contracts; that every sale Is by con-
tract, either expressed or implied, and
is covered by the statute. (which is
very broad In it's language and can not
be avoided or evaded in any such man
ner."
The question OF a taxpayer COM
mencing an action for the city to re-
cover money illegally appropriated, by
the council to a member has never
been brought up in this state, altho it
has been sustained in some other
states. Upon the success of their ac-
ton, II such should be the case, the
judgment would be entered In the
name of the city of Marshaltown
against, and the city would receive al
Of the benefits. Mr.. Sieg, Of course
gaining nothing personally by 1t. This
case differs from that Of Kreutzer &
Wasem and Henry & Bradford, as In
those cases there are express con-
tracts and are claimed by Mr.. Sieg to
be clearly unla1neul and will be tested
in the injuncll case, now pending.
Bills W. selected to make the
amount in this Abbottalittle over 500.
for the purpose Of taking the same to
the supreme court, If necessary, that
amount being necessary for appeal.