The weekly tribune and the Cape County herald. (Cape Girardeau, Mo.) 1914-1918, 1916-04-28
Opinion Followed by Judge
Kelly was Written before
New Law Passed.
DRAINAGE MEASURE
TO BE GIVEN TEST
Law Is Said to Conflict With
Statutes that Were in Effect
Before Ii.

Attorneys who have beer studying
the drainage laws since Judge Frank
Kelly handed down his decision order
ing Scott County to build the Little
River Drainage bridges, are contend
ing that the court erred in following
the ruling of the Supreme Court.
In Il similar case, Judge Woodson
of the Missouri Supreme Court, wrote
a lengthy opinion, compelling Charlton
County, Mo-, to do work similar to
that asked of this county by the Little
River Drainage Company.
Under the Drainage law, which was
fathered by men now connected with
the Little River Drainage District, cor
pOrations are amcnable to the wishes
of the drainage company. On the
theory that the County is a corpora
tiOn, the drainage company, under the
ruling of the Supreme Court, has the
right TO compel Cape Girardeau Coun-
ty to construct the bridges.
The Drainage law was enacted in
1909 and in 1913 the State Legislature
amended the statute, eliminating coun-
ties from the penalties Of the law.
The amendment concludes: The word
corporation as used in this section
shall not apply to counties"
This amendment became effective
March y, 1910. IN July of the same
year, Judge Woodson wrote MS opin-
ion uphoIding the contention that
county was a corporation. In his
decision he made no notice OF the
amendment to the law which he quoted
as his authority for his decision.
A prominent lawyer yesterday eX
planned Judge WoodsOn's action.
"You see. when Judge WOOdson
first took up the case the amendment
to the drainage law had not been
written, and he was compelled to de
eide the case upon the Law and facts
as they were originally presented to
him.
ITO make this point perfectly clear.
| will give another illustration: Sup
pose some man in Cape Girardeau was
arrested on a charge of speeding.
Suppose the law was - miles an hour
and the man arrested was driving 20
miles an hour Suppose the case was
appealed and while it was awaiting for
the court to pass upon it, new speed
law placing the speed limit at 30 miles
an hour was passed by Cape Girar
deau. The fact that the new law had
been passed would not affect the case
in court. The case would take its turn
in court and be decided by the law
which was in vogue when the case was
tried and then appealed.
Judge Woodson did Just what he
was expected to do. Had the amend
ment to the drainage law been in
effect when the case was originally
heard and then appealed. the case
would have been thrown out.
Judge Kelly no doubt failed to take
the amendment to the Drainage law
into consideration when he decided the
Scott County case. He simply based
his opinion on the Interpretation of
the Drainage law as written by Judge
WOodson."
Another lawyer, who is an auth
oritv on railroad law, contends that
the drainage company is seeking an
easement over an easement, Just as
one railroad frequently asks of an
other. "In all requests of this char
acter the railroad first asks permis-
sion and when the easement has been
granted, the railroad asking the favor
repairs the damage that it inficts.
Every railroad crossing illustrates the
question in point between the drainage
company and the County. Under es-
tablished law, the bridges must be
built by the drainage company and not
by the County"
Out of the present legal controversy
is expected to be fled a suit testing
the constitutionality of the Drainage
law. Attorneys say it conflicts with
statutes that were in effect before the
drainage meausFe was put through
the Missouri Legislature.