Tillamoolc
JUDGE’S FINDINGS IN
PAVEMENT CASE.
Technical Error Fatal-
Pavement Not Up to
Specifications.
1
J
)
J
In tbe Circuit Court of the*.State of
Oregonjfor Tillamook County: F. R.
Beals, A. G. Beals, G. H. Ward, et a),
plaintiffs, vs. the Warren Construction
Co. defendants.
Tbe above entitled cause having
heretofore come regularly on for trial
beaore the above entitled court, J. U.
Campbell, a judge of the Circuit Court
of the State of Oregon for the 5th
Judicial Ditrict presiding, he having
been duly assigned thereto, and tne
c iurt having heard the evidence and
the argument of counsel for the re
spective parties and being now fully
advised in the premises.
* I
J
Find» The Following Facts:
I.
City al tbe lime alleged in said ci m-
plaint, whereby the said Warren Con
struction Company undertook, contract
ed and agreed to furnish the materials
and implements and perfo-m the labor
necessary for the improvements in said
specified
in
accordance
contract
with the charter and resolutions of
said city and in conformity with the
terms, conditions and requirements of
the plans and spécifications for said
improvements.
VIII.
That by the terms of said contract
the wearing surface was required to be
not less than 2 inches in thickness in
the streets paved with standard bitu-
lithic pavement, while the other
streets, or those paved with the light
bitulithic, were required to have a
wearing surface not less than If inches
in thickness.
IX.
That by the terms of the. contract
and specifications it was required that
the wearing surface should be compos
ed of carefully selected sound, hard,
crushed stone, varying from lj inches
to 1-10 inch in diameter, mixed with
bitumen in the manner provided in the
specifications and contract. That such
stones and bitumen were required to be
assembled and made into one mixture.
X
Headlight
IL
That the said Construction Company
did not substantially comply with its
contract and the improvement made ia
not a substantial compliance with or
performance of such contract, and tbe
plaintiffs are entitled to a perpetual
injunction and restraining order re
straining and prohibiting the common
council of the said city from assessing
any part of the cost of said street
improvements against the property of
the plaintiff^ in the complaint describ
ed.
(Signed) J. U. Campbell,
J udge.
DECREE.
Now at thia time came tbe plaintiffs
in the above entitled cause, by their
attorneys Geo. R. Bagley, E.B. Tongue,
Geo. G. Bingham, and Fulton & Bow
erman, and came tbe defendant War
ren Construction Company, by Dan J.
Malarky and R. W Montague, its at
torneys, and came the other defendants
answering herein by their attorneys,
Messers John M. Gearin and H. T.
Botts, and thereupon counsel for plain
tiffs moved the Court for adecre in ac
cord with the Findings of Fact and
Conclusions of Law heretofore made
by the court and filed with the Clerk ;
of this Court, and said motion is allow
ed by the Court.
CHRISTMAS AND NEW YEAR HOLIDAYS
AT HOME
Round Trip
with the problem of buy ng Hiirress
yon will find ii distinctly advanta
geous to come and do your select
iug here. You will get tbe Fe-t
qualities, the most thorough and
conscientious workmanship and I «■
charged the most reasonable prices.
We can supply single or double
Sets or any single artitle that you
may be in need of.
The Exposition |Line, 1915
Between all Points in Oregon, also from Points
in Oregon to California, Washington
and Idaho.
That the several lota and parcels of
land in the amended complaint in this
cause described are owned, located and
abut on the streets of Tillamook City
as in said complaint alleged.
II.
That defendant Warren Construction
Company ia a corporation as in said
IT IS THEREFORE ADJUDGED
That the Court personally examined
complaint alleged and the defendant
CHRISTMAS HOLIDAYS
Between all points in Oregon ; u I bo
AND DECREED by the Court that the |
Tillamook City is a municipal corpor ’ and inspected the pavement and wit- proceedings taken, had and done by
from Southern ¡Pacific pointe to ¡points in Washington
and Idaho Dec. 18 to 24 inclusive. Between Oregontand
ation as alleged, and the defendant J. ’ nessed the taking of samples therefrom the Common Council of the City of
California points Dee. [2Q to 25. Return limit all points
R. Harter is and waa during the time ■ at various places and from such exam- Tillamook in the matter of the improve
mentioned in the complaint the mayor . ¡nation and inspection and the testi- ment of the streets of said city in the
Jan. 5, 1914.
of said city, and the defendants M. F. : mony the court finds that the said Con- amendeifcomplaint of the plaintiffs in
NEW YEARS HOLIDAYS!:-Dec. r27 to Jan. 1, with final return
Leach, F. L. Sappington, G. L. Dick, [ struction Company did not lay said this suit described and set forth were
limit Jun. 3,
5, 1914. ¡The New Year Fares apply only
Erwin Harrison and Emett Bales were . pavement of the required thickness taken and had by said Common Council
between points [in Oregon and between Oregon and Cali
during said time and are councilmen of I but in many places throughout the without jurisdiction or authority, and
fornia.
■aid city and members of ->nd consti entire improvement where standard the said defendant the Warren Con
tute the council thereof, and the de- i bitulithic, or pavement having 2 inches struction Company failed and neglected
«
fendant P. W. Todd is the Recorder of of wearing surface was required, a I to perform and comply with the terms
wearing
surface
of
substantially
les«
■aid city.
’ of its contract in making the improve
than 2 inches was laid, and where 1J
III.
ments in the Btreets in said amended
That by the provisions of the charter inches in thickness of wearing surface complaint described, and the said pro
i
was
required
a
wearing
surface
of
,
of said city, before any street improve
ceedings’ were and are void and the
ment can be undertaken or made by substantially less than 1J inches was said Warren Construction Company is
laid, and throughout the aaid improve- i B“’u """’T
« vvu.p..,, ..
the city or a contract therefor entered
.
,
..
.
not entitled to have and the said city
nvAn* tbn tiToorinrr unrfonn nv fhx* miv_
into by the city, it is incumbent on the ment the wearing surface or the mix or the Common Council thereof is not
Call on nearest Southern Pacific Agent fcr full particulars
council to give notice to the owners of ture therefor was not made up in one entitled to assess any part of the costs
train schedules, specific fares, etc.
mixture
but
on
the
contrary
was
made
the lots abutting thereon and adjacent
or expenses of such improvements or
into
two
mixtures
and
laid
separately,
‘
JOHN M. SCOTT General Passenger Agent.
thereto to make snch improvement
* any thereof against the property of the
Portland, Oregon,
within 30 days, under the supervision the first mixture being composed of a plaintiffs in said amended complaint de
of the street commissioner, and if such greater portion of large stone than was scribed or any thereof.
owners or any of them fail to make provided by the contract and specifica | IT IS FURTHER ORDERED. AD
such improvement within such 30 days, tions, while the second mixture or up JUDGED AND DECREED by the
It is somewhat wide of the fact-
To Correspondents.
council is then, and not otherwise, per portion of the wearing surface, Court that the defendant City of Tilla
authorized to proceed to make such im ranging from J to 1 inch in thickness. I mook and defendants J. R. Harter as to say that constitutionalists in
C onstant R eaper of the H eap -
provement and assess the cost thereof I was composed entirely of natural sand Mayor and M. F. Leach, F. L. Sapping Mexico now control about twn thirds
light . —When communications are
of
the
area
of
the
country.
Various
and
rock
dust
or
crushed
rock
of
the
upon the property.
ton, G. L. Dick, Erwin Harrison and
bands of insurrectionists, outlaws sent to the office for publication the
fineness of sand, being 50 per cent of
IV.
Emmet Bales, as Counciimen of said
natural
sand
and
50
per
cent
of
rock
and
plain bandits, differing much signatures of the writers must ac
f That before undertaking the im
City, and each of them and their suc
dust
or
crushed
rock
of
the
fineness
of
in
degree
and purpose, occupy mid company them, not necessarily for
provement or entering into the con
cessors in office and the successor of
publication, but to show good faith,
tract set forth in the said complaint sand mixed with bitumen or bituminous each of them in office, be and they are terrorize enough territory to make
and as your letter does not comply
that
proportion
when
all
added
to
cement.
with the defendant Warren Construc
hereby commanded and required to re
XI
I frain and desist and are perpetually gether, but they have not a com- with this requirement, we decline to
tion Company, the common council of
Another thing, you
mon purpose nor are they under publish it.
That by the terms of said oontract
said citv did not give such notice or
restrained and enjoined from accepting
is n<> make libelous statements about our
common
headship.
There
(Continued
on
Last
Page.)
any notice to such property owners to
the alleged street improvements or any
could doctors that it would be difficult for
make such improvei..ent and did not the said contractor ’.ezs required to thereof made by the defendant Warren assurance that they would or
work together in the event of the you or the editor to prove. If you
grade
ths
street
to
the
subgrade
as
afford such property owners or any of
Construction Co. in the City of Tilla
overthrow of the present Federal are in business, and we believe you
them an opportunity to make the im given'by the city Engineer and to take mook aforesaid and in the amended
Government If the future may be are, have you ever entered into a
out
and
remove
all
soft
and
spongy
provement.
complaint in this suit described and
judged by the past we may be sure combination with others in your line
i places and refill the same with proper
V.
set forth and from adopting or passing
they would not.
When Madero to keep your charges at the top
material carefully rammed or rolled so
That Ordinance No. 235 of said
any resolution whatever assessing upon
overthrew Diaz, and by the usual notch and how much higher are
as to make such filling compact and
city, entitled
the property of the plaintiffs in said
“An Ordinance to amend Sec ' solid, and then the roadway was re complaint described or any thereof any militarily controlled election was they than in the East ? —Er>.
chosen president, all the elements
tions Numbered 1, 2, 3, 4, 5, 7, 8,
quired to be rolled until thoroughly
sum or sums of money or amount what
9, 11 and 16 of Article WTL of an
of insurrection did not unite with
compacted and solid That said con
ever
for
or
because
of
or
to
pay
the
Act entitled ‘An Act to Incorporate
him in giving stability to his gov
tractor
did
not
remove
all
the
soft
and
the City of Tillamook City, in Til
expense of any of said street improve
ernment. They will no more unite
spongy places or refill the same with
lamook County, State of Oregon,
ments constructed adjacent to or abutt
now.
Each leader must be ap
■nd to Repeal all Acts and parts of
any materia), but certain portions of
ing upon the property of the plaintiffs
Acta in conflict herewith.’
peased with something worth while
the roadway was soft and spongy and
in said complaint described or any
Filed in-the office of the Secre
aged until every drop is
in the way of personal aggrandize
the same was left by the contractor in
tary of Blate February 13th, 1893,
thereof, and that the said defendant P.
rare and mellow. That’s
ment.
that condition and no attempt was
as originally passed and as amend
W. Todd as Recorder of said city of
what gives the flavor
ed - or attempted to be amended by
made to remove the same or to replace
Tillamook and his successors in office
to
Old
subsequent Actor Ordinance,”
the same with proper material, and the
tv as first ¡filed with the Recorder of roadway was not rolled so as to make be and they are commanded to refrain
said city on the 29th day of March, it compact and solid, but the said sur from and are hereby perpetually re
Sidney E. Henderson, Pres,,
1912, on which date it was passed by face composed of natural and artifi strained and enjo.ned from entering in
Surveyor.
Harper Whiskey. For
t le con mon council of said city and cial sand as above stated was placed the docket of city liens in the City of
John I-eland Henderson, Sec
Tillamook
¡any
assessment
whatever
fifty
years that flavor has
was approved by the Mayor of said on top of said pavement for the pur
retary Treas., Attomey-at-
been the favorite. It's
city on the first day of April, 1912, and pose of supplying a surface which upon the property of the plaintiffs in
I-aw,
Notrary
Public.
velvety richness never
which aaid ordinance was submitted to would be pliable and respond and con said complaint described or anv there
varies. Your Grandfather
the voters of said city by ordinance form to the undulations of the subgrade of for or because of the expense cr any
expense or costs of said street im
chose Old L W.
No. 240 of said city entitled
or foundation under heavy traffic and
provements or any thereof.
'
“An Ordinance providing for the
prevent the same from cracking tnd
hckling of a special electiun in Til
Law, Abstracts, Real Estate, ■
disclosing the impeifect workmanship. ' IT IS FURTHER ORDERED, AD
lamook City, Oregon, to be held on
Surveying, Insurance.
And the court finds that in the respects JUDGED AND DECREED By the
the 12th day of April, 1912, for the
because he knew it waa
■ubmisaion to the legal voters of
herein mentioned there was a substan Court that the plaintiffs have and re
Both Phor.es.
“
said city, for their adoption or re
the best.
Today you
tial and wilful departure from and cover of and from the defendants in
TILLAMOOK - - OREGON.
jection, Ordinance Number 234, 235
can find no finer
violation of the te. ms of the said con this cause their costs and disburse
and 236 passed by the common coun
tract by tbe said Warren Construction ments herein taxed at $--------------- , and
cil of said city on the 29th day of
March, 1912T and Ordinances Num
Company, the contractor, whereby the that execution issue therefor.
ber 237, S8 and 239. passed by the
pavement was rendered less valuable, | DONE AND DATED this--------- day
Oregon Agricultural College
eomqpen council of said city on the
K_ n LAUGHLIN,
ita durability lessened, and the rights of December. 1913.
k^roay of April, 1912, providing
Tillamook, Ore.
J.
U.
Campbell,
Judge.
of the property owners prejudiced.
Anereby for amendments of the
r Charter or said Tillc mook City, and
XII.
declaring an emergency,”
That at the time of the commence
December 8- to 13, 1913
That aaid Ordinance No. 240 was intro
ment of thia suit the said Construction
C orvallis , Ore, Dec. 18.—Pro
duced in and passel said council on the
This will be
notable event in the
Company, was claiming that it had
testing against the further expendi
2nd day of April, 1912, and was ap
practically finished and completed said
educational
history
of Oregon.
ture of money for other than paved
proved on the 4th day ef April, 1912.
Farmers’Co-operation will be the
contract and improvement and waa de
roads,
A.
J.
Johnson,
a
local
by the mayor of aaid city, and which
leading topic of a stimulating aeries of
manding acceptance thereof by the said
ordinance last mentioned provided for City, and the common council of aaid j banker, at a Commercial Club meet-1 lectures. The week will be crowded
i ing on good roads Inst night, out- with discussions, and demonstrations
an election to be held in said city on
city was about to accept such improve I lined a plan for paving 106 miles of I in everything that makes for the wel
the 12th day of April, 1912, to vote on
On your front porch can be lit
fare of the farm« r and home-maker.
ment completed in tbe manner afore
every night until midnight
■aid ordidance No. 235 ■■ an amend said and assess the coat thereof upon roadway radiating from Corvallis I
and register not over
into the main sections of Benton
ment to tbe Charter of said city.
WINTER
SHORT
COURSE
the property of the plaintiffs in the
fifty cents per month
, County.
VI
complaint described, and would have
on the meter.
January 5 to 30, 1914
That at the time of the introduction
It was shown that in five years
done so bad this suit not been institut-
and passage of said Ordinance No. 240
9300,000 has been expended on road I
The College has spared no effort to T illakook E lectric L ight and
ad.
.F uel C ompany
■nd aaid Ordinance No. 235 the City of
improvement in thiscounty and that make this the most complete short
XIII.
I only gravel roads in medium con I course in ita history. A very wide
W ill S palding . Manager.
Tillamook had not by ordinance or
That the plaintiffs have a common
, range of course will be offered in Gen
otherwise or at all provided for the
dition is the result.
interest in the relief sought in thia
eral Agriculture, Horticulture, Ani-
manner of submitting to the voters of
A change of plan, involving the i mal Huabaiairy.
Dairying, Poultry
suit and said plaintiffs hava not nor has
said city proposed amendments to the
co st ruction of paved roads by the Keeping, Mechanic Aria, Domestic
any
<
f
them
been
guilty
of
any
action
chAer thereof, and said council was
unit system was demand *d and I Science and Art, Commerce, Forestry,
or omission which should, in equity,
without power or authority to submit
indorsed by the meeting, A move and Music. Numerous lectures and
j discussions on FARMERS' CO-OPER-
estopp them or any of them from de
■aid nr ipoeed amendment embodied in
to raise a fund by Corvallis busi | ATION, at home and abroad, will be a
manding such relief.
sa>d Ordinance No. 236 to the voters of
ness men lor tbe proper improve leading few*.ure. Make this a pleasant
C bbc I mmm of La*.
raid city at an election held within 60
ment of the Linn County eaat axle ! and probta'.tle winter outing. . No ta-
Accommodations
reasonable
As conclusions of law the court finds : road from Albany over the new I ition.
days subsequent to March 20th 1912.
| Reduce-1 rates on all tail roads. For
VII.
I.
Willamette steel bridge at Corvallis further •>formation address
That the attempted amendment of waa started.
That the said defendant Warren Co: •
H. 'M. TENNANT. Registrar.
At leas*, a staall portion of the
stfuetron Company pretended to enter the charter of the said City of Tilla
Corvallis, Oregon.
present
levy
by
the
County
Court
I
’Earners’ Businoaa < ouraea by Cor
into the contract alleged and set forth mook was and is void ar d of no force will te spent to provide a sample 1
resrMMMft°nce without tuition.
of paved road.
a'said complaint with said Tillamook or effect.
W.A, Williams
TOWER’S FISH BRAND
REFLEX SLICKER
KEEPS OUT A 1.1. THE RAIN
MTENTEU
SALE DATES AND LIMITS
SUPERIOR TRAIN SERVICE
W ater
C annot
R eflex E dges V R o n I n A t
P rotect Y ou a |\ T he F ront
W ATEHPKOOF—DURABLE
satisfaction guaranteed
$3.00 Everywhere
A. J. TOWER CO.
BOSTON
Tower Canadian
Toronto
Observation Cars, Dining Car and big,
warm all-steel coaches. All trains
solidly vestibuled.
I
I
Old
I.W.
I
Tillamook Title and
Abstract Co.
:
I
HARPER
I
WHISKEY
I'
Wants Paved Roads.
FARMERS’ WEEK
A 15 Watt Mazda
Lamp
Babies will grow anil while tin
are growing, you should have
photographed often enough to luwj,.
a record of each interesting stage
of their childhood. You will prize
the collection of baby’s pictures
more and tr.ore ae the years go by
Monk’s S' ud o
If you are thinkin gc fbuying
a good Harness, horse covers,
halters, or anything in the har
ness line it will pay you to see
me.
I also carry the famous Shar
key’s collar.
Bechtel’s Hamess Shop
TII.I.\MOOK
ORE.
Made My Life
Worth Living
“I feel it my duty to tell others what
Chanils-rlain'H Tablets have done for
writes Mrs. L. Dunlap, of Oak
Grove. Mich. "1 have
Buffered with pain* ia
lny liack anil under
ruy shoulder blade fcr
a niimla-r of /ear*,
also with » poor appe
tite and i 'natipafion-
I tried all of tbe rem
edies that I heard of,
and a number of
tors, but got no relief-
Finally a fri>nd told
me to try Chamber-
lain'* Stomach and
Liver Tablets. I g'*
a bottle of them and
they
mi helped uijr
stomach; by t*>eir
gentle to lion my bow
els la- one more reg
ular Today I Ibtl Uke
praisier them to all
who m tier as I did, for
they have cnred mo au l made uiy life
worth living ’
"MyM a mm a Says -
Its Safe for
Children
CONTAINS
NO
OPIATLú
Tillamook
Baker’s Bread
Sold at
All Grocers
) Ì
A
HO
For Coughs and Colds