Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1908-03-10

THE ASSESSMENT is LOWERED
Judge Holds Paving Company Sub
stantiaIIy Complied With Contract
Councils Assessment: Was Excessive
Lowers Assessment, But Charges
Interest and Penalties to Appellant.

Judge c. b. Bradshaw, in this dis
trict court this morning, decided the
the city of Marshalnown, commonly
known as one of the paving cases
which has dragged thru court for foul
years, and which was tried the last
time few weeks ago. The city's
assessment for the paving was reduced
| 40 per cent, from $500 to 1895, with
| the date from which interest and pen
| alties accrue to be determined by the
judge when the decree is entered.
The amount of the finding is es-
| tablished as tax against the prop
erty. The costs of the case are as
sessed to the city.
Judge Bradshaw's finding, which
was written, was volurainous and COW
cred thirteen typewri ten pages. 1t
reviewed all of the salient points of
the case.
Refers to Brown Decision.
Judge Bradshaw tool: occasion TO re-
fer to the decision in he Brown case,
which involved the same piece of paw
ing on South Fourth avenue, as fol-
lows: II have notbeen anmindful of the
fact that in similar appeal from an
! assessment on Fourth avenue, on the
| opposite side of the street, one OF my
learned predecessors on the bench held
| the assessment In that case to be void.
| The weight to which his opinion is
I justly entitled had led me to long and
careful elaboration before reaching a
different conclusion in this case. 1t
| may be said, however, that at the time
| that opinion was filed, it was generally
accepted by the profession as the law
| that an assessment by the front foot
rule, covering the cost of the improve
ment, ignored the consideration OF spe-
cial benefits TO each piece of property,
and was, therefore, void. At that time
the present incumbent of the bench
shared that view, but since then I
Iithink it is now settled by the supreme
court of this state that it matters little
by what wethod of assessment was
arrived at--the test Of whether special
assessment fairly, prop ortionately. and
justly made. Is determ5 ned by the re-
suit obtained from the plan of assess
ment and not from the plan itself.
What hold here is that an assess
ment by the front foot rule, not eN-
ceeding the cost of the improvement,
is not for that reasan alone void"
On Nom Compliance With Contract.
The compliance of the contract
was the chief ground for the petitions
er's claim that the assessment should
be set aside. Touching on this mpor-
tant phase of the case Judge Bradshaw
said: ''rhe specifications of the objec-
tons on the ground of noncompliance
filed herein are too numerous and the
evidence received there on too Yolum-
inous to be set out in this opinion.
From this evidence ] ind that the
pieces of pavement exhibited and in
troduced in evidence, and the measure
ments thereof, show that there were
variations in the thickness of the
binder course and wearing surface. and
that said measurements of the pieces
taken from the pavement show that
the binder course and wearing surface
did mot measure up to one and one
half inches of thickness each, as was
specified in the contract.
cat the same time find that the
evidence. without contradiction, dis
closes that a literal compliance with
the contract in this respect was me-
chemically impossible, and that the
variations in the thickness of the top
courses have not impaired the dura-
bility of the pavement, tho years have
elapsed since it was constructed"
Paving and Gutter Construction.
A similar claim, regarding the nom
compliance of the contract, as was
made with reference to the paving, was
also made against. the curb and gut
ter Regarding this part of the work
Judge BradshaW's opinion reads: AS
to the combined curb and gutter. The
evidence shows that the mode of con-
struction was that prescribed, and it
was. constructed in substantial COM
pliance with the contract The evidence
as to the manner of construction and
the fact that it has endured for years
without impairment to the present
time, as shown by the testimony of
witnesses, affords satisfactory proof
that the foundation was sufficient and
properly constructed"
Other Objections OverruIed.
Without going into detail regarding
the other objections, Judge Bradshaw
overruled, each, and all of them collec-
lively, as follows:
without mentioning seriatim the
other objections based on the alleged
failure of the Barber company to per-
form the work in compliance with con-
tract. the court finds against the APP
pellant, and overrules and dismisses
each of said objections as insufficient
to invalidate the assessment
Does Not Invalidate Assessment.
Taking up the subject of the assess
ment and the method OF arriving. the
opinion is: II now hold that the as
sessment made by the council against
the property of appellant is not invalid
or void because of the plan of assess
ment alleged to have been adopted or
because the amount of the assess
ment equaled the entire cost of the i'm
Such an assessment may
be erroneous but, in my judgment, it
is not void.
For reasons hereinbefore stated, the
court feels called upon to reduce the
am cunt of the assessment against APP
pellant's property. and make new as
sessment In doing so, however, there
is no implication or inference that the