The weekly tribune and the Cape County herald. (Cape Girardeau, Mo.) 1914-1918, 1917-06-28
CONDEMNATION
OF MERRIWETHER
CALLED ILLEGAL
C. G. N. Files Exception To
Commissioners Report In
Common Pleas Court.
CHANGE DEGRADE WILL
WRECK C.G.N. PROPERTY
viaduct Necessitatedby Improve
ment Will Cost Railroad $780,
600, Document Says.

The exceptions to the condemnation
report on Merriwether street filed yes
terday afternoon by John A. Hope, at
torney for the Cape Girardeau North
ern Railroad, are based on the conten-
ton that the proceedings instituted
by the city to change of the grade of
Merriwether street were illegal and
void for various reasons, principally
because of the failure to assess any
damages or benefits against the prop
erty involved in these proceedings.
Another reason advanced by the
railroads attorney showing the con-
demnation of the property illegal is
the contention that the proposed
change constitutes violation of the
statutes of Missouri and the constitu-
ton of the United States prohibiting
the enactment and enforcement of any
law impairing the obligation of con-
tracts.
The statement of the railroad is in
answer to the report recently made by
the commissioners, who were appoint
ed by Judge Snider to assess dam
ages and benefits that would result
from the proposed change of the grade
of Merriwether street.
The document begins by alleging
that the entire procedure was illegal
because of the incorrect description of
the property in the report of the COM
missioners. The report, according to
the exception of the railroad, does not
describe all property of the railroad
that would be damaged by the pro-
posed change.
The change of the grade and the
condemnation of the property for the
proposed improvement, the exception
sets forth, was also made illegal by
the course pursued by the City Council
when the condemnation proceedings
were authorized by resolution pass
ed by the City Council July 10, 1915.
The proper procedure, the exception
contends, should have been the enact
ment of an ordinance without the reso-
luton by the City Council.
The failure of the commissioners to
establish any damages incurred by the
condemnation, the documents say, is
in violation of the constitution of Mis-
souri,, which defines that no private
property may be taken from the own
er without fair compensation. This
would also violate amendment ID of
the Constitution of the United States
which prohibits the denial of equal
protection of the law, and guarantees
every citizen against deprivation of
property without the due process of
law.
The basis of the city's action, the
exception continues, is further illegal
because it fails to establish a benefit
district and because of its unreason-
ableness. The action of the city would
constitute breach of franchise and
contract between the city and the rail-
road.
| The erection of the passenger and
freight depot of the railroad, the docu-
ments say, the establishment of the
terminals and switch yards of the rail-
road were done with the approval of
the city more than Is years ago. This
property is valued at more than $780,
600. If the grade of Merriwether
street were established as proposed
in the report of the commissioners, an
excavation eighteen feet deep would
have to be dug under the main line
of the tracks of the railroad.
| In order to continue the operation
of its trains over the main line of the
railroad, it would be necessary to con-
struct viaduct across the excavation
at cost of $4,000 which would be
borne by the railroad.
No necessity of the change has been
found, the exception continues, no traf-
fic, and no residences are in the dis
trict through which the proposed street
will run, and number of well-paved
streets leading to the business section
of the city can take care of the traffic
from the outer parts of the city. The
change would be reckless and wanton
destruction and confscation of the
property of the railroad.
The exception deducts from these
contentious that the ordinance author
izing the condemnation and the ap-
pointment of. the commissioners for
the procedure, is in eepflict with the
constitution of Missouri and also of
the United States and asks that the
petition asking for the condemnation
Of the property be dismissed by the
Judge.