Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1905-06-20
Orders Levy Made Against Prop
erty on North First and Sec
ond Avenues--Mayor Objects
PROPERTY OWNERS MUST PAY
Mayor Insledue Refuses to Sign Reso-
luton Ordering Assessment = May
Decide to Veto it-council's Action
Taken On the Advice of Attorneys
Believed Substantial Compliance of
Contract Was Made.

Believing that IL did not have suifl-
Gent evidence to substantiate a claim
of non compliance with contract, and
fearing If it refused, the city might
at some time in the future be COM
PEELED to stand the entire cost, the
council, at its adjourned meeting
Monday evening. ordered the cost of
the asphalt paving on North First and
Second avenues levied and assessed
against the abutting property. This
action was taken on legal advice, but
did not accord with the views of May
or Ingledue. who gave notice that he
would withhold his signature from the
resolution ordering the assessment,
and intimated that he might finally
veto it. approximately 100000 is in
volved in the paving on these two
streets, about $500 of which is for
alley and street intersections.
The resolution to assess followed the
report of the Judiciary committee,
which included voluminous opinions on
the legal phases of the case submitted
by four of the city's we'll known at
torneys, including City Solicitor Bur
rift. All of the members. exclusive of
Sieg and McMams, who were absent,
voted to assess, excepting Calhoun.
Hinged on Compliance of Contract.
The opinions, which the council took
as its basis for action, all hinged on
whether or not the Barber Asphalt
Company, in doing the work. had made
a substantial compliance with the con-
tract. Just what this term meant was
another vital point in the consideration,
A substantial compliance with the
contract, so the opinions of the attor-
neys read, did not mean carrying out
the contract in all of it's smallest and
unimportant details and some slight
COMMISSIONS and defects might exist.
and still there could be a substantial
compliance. Furthermore, to prove that
there was not a substantial compli-
ance of the CONTRACT on the part OF the
Barber Asphalt Company. the city, so
the attorneys held. must show intent
to fraud and intentional defects made
with the object of gain on the part of
the asphalt people.
Attorneys Disagree.
One of the attorneys j. l.. Carney,
City Solicitor Burritt concurring, held,
that unless the city had suffic-
lent evidence to show the Barber
Asphalt Company used fraudulent
methods in the work, the council
should assess And this evidence, these
attorneys held, must be sufficient to
prove their case These same attorneys
questioned, whether or not, in view OF
the fact that the council had accepted
the streets months ago. that it could
set that action aside by its refusal to
assess the cost. If such action was
taken, the opinion said, there was
grave danger that, should the city be
beaten in it's suit, the city might then
have to pay the entire cost of all Of
both streets The opinion of the two
others C. II. Van Law and G. III. p.
Boardrlan differed materially In regard
to what the council should do. After eX-
planning the meaning of substantial
compliance of the contract. it recon-
mended that the former acceptance of
the work be disregarded, and that the
contract for the work be treated as tho
it had come up for the first time.
Paving Slightly Under Contract.
ACCOMMODATING the report Of the jul
dietary committee was also report of
the city engineer giving the result o.
measurements made of the asphalt and
binder courses by means of about
thirty holes bored in the two streets
at various places. This showed that
the average thickness of the asphalt
course, by the holes measured, was
1895 inches, and the hinder course
1855 inches, when the contract called
for both being LIS inches thick.
The Arguments Long.
The argument on the resolution
was long, Mr.. Webster leading in favor
of the assessment. He held it was bet
ter to assess, in view of the fact that
he doubted very much if the city could
prove a mono compliance with the con-
tract, and in view of the fact that liti-
cation would be expense, and in the
end the city might have to pay the en-
tire cost. Mr.. Calhoun opposed it, and
favored the city fighting the case to
the end. Mr.. Clark. a member of the
Judiciary committee favored making
the assessment, altho he was one
whose property would be assessed with
the others, but he believed it to be
the best way.
Mayor WithhoIds Signature.
Mayor Ingledue may withhold his
signature, and if such is the case it
will be up to the council to pass i.
over his veto. In notifying the council
that he would take the resolution un-
der advisement Mr.. Ingledue states
he had no doubt the contract was not
complied with. He said: 1.-TWO and
three-quarters inches Of top and bind
er courses is not three inches. and l
believe every piece of paving put dow:
by the Barber Asphalt company is
short in measurement Of thickness. If.
as it is claimed, the wear of the pas
eighteen months has been sufficient to
reduce the thickness from three TO
two and three quarters inches, where
will the paving be when the seven
years covered by the company's bond
is up? The city has a moral obliga-
ton it owes to the property owners.
and they should not be forced to fight
the city's battles. l shall not sign the
resolution now but will notify the
council in time, provided ! decide to
veto the resolutions