The State ex rel. Porter v. Hudson

• Decision Date: 07 March 1910
• Parties: THE STATE ex rel. J. L. PORTER et al. v. FRANKLIN HUDSON et al., Composing Board of Park Commissioners of Kansas City, Appellants
• Court: Missouri Supreme Court

126 S.W. 733

226 Mo. 239

THE STATE ex rel. J. L. PORTER et al. v. FRANKLIN HUDSON et al., Composing Board of Park Commissioners of Kansas City, Appellants

Supreme Court of Missouri

March 7, 1910

Appeal from Jackson Circuit Court. -- Hon. Thos. J. Seehorn, Judge.

Reversed and remanded (with directions).

Jno. T Harding, W. L. Lampkin and C. O. Tichenor for appellants.

(1) This is an action, not in equity, but by mandamus, for the specific performance of an agreement. The board has simply agreed to locate and construct a boulevard. "It is equally elementary that mandamus will not lie for the enforcement of mere contractual obligations." U. S v. Railroad, 138 F. 852; State ex rel. v. Howard County, 39 Mo. 375; Mansfield v. Fuller, 50 Mo 338. "Nor has a court any authority to compel the performance of executory contracts" by mandamus. State ex rel. v. Associated Press, 159 Mo. 442. (2) Plaintiffs claim that for this small sum of money so received, defendant's charter powers have been bartered away; that the mere acceptance of this offer -- an offer never presented to the council -- one which is unfair to the city and unjust to the rest of the owners in the park district, who must pay that which plaintiffs fail to pay for the improvement of their ground -- caused their grounds to differ from all other grounds in the park district, without a shadow of reason therefor, depriving the board of its power to do its duty, to correct mistakes, to alter the route of the boulevard, to repent of wrongs done, compelling it to violate the rights of those it represents as trustees. All this, too, in face of section 19, article 10, and section 15, article 8, of the charter. Simpson v. Kansas City, 111 Mo. 242. (3) "Where a party has a clear, legal right to demand the performance of a specific duty and there is no other adequate remedy, mandamus will generally lie to compel performance. But it is essential that the relator have a clear legal right to the thing demanded, and it must be the imperative duty of the respondents to perform the act required." 19 Am. and Eng. Ency. Law (2 Ed.), pp. 725 and 730; State ex rel. v. Cottengin, 172 Mo. 134. The judgment in this case compels a breach of trust. "In effect it would be transferring the property of one individual to another." McCormack v. Patchin, 53 Mo. 36; State ex rel. v. Bridge Co., 206 Mo. 147. (4) If the offer of February 15, 1905, and the acceptance of it by a divided board were valid, even then, if the members believed that they had made a mistake or that they had done violence to their duty, they had the power, and it was their duty, to annul it, tendering back the money and deeds -- placing the parties in statu quo. If the acceptance had any vitality, it was because the board was acting in its governmental capacity, and the rescinding was done in like capacity. Ely v. St. Louis, 181 Mo. 729. It was a matter of "governmental discretion." Ruppenthal v. St. Louis, 190 Mo. 224. The court will not interfere with such discretion by mandamus. Barber Asphalt Co. v. French, 158 Mo. 547; State ex rel. v. Brown, 172 Mo. 382; Simpson v. Kansas City, 111 Mo. 242; Moore v. Cape Girardeau, 103 Mo. 475; State ex rel. v. Schweickardt, 109 Mo. 511. (5) Even though this deal was valid, was a matter for the public and one as to which it was the clear duty of the board to act, then the court would go no further than to compel the board to act. But it had acted before this proceeding was brought, by reconsidering the whole transaction and tendering back money and deeds. Clay City v. Roberts, 124 Ky. 601; Frank v. St. Louis, 145 Mo. 600. (6) The commissioners did not have the power to purchase lands, receive deeds and to establish and construct the boulevard in question without an ordinance of the council. The board is not a corporation like, e. g., that of Chicago, which is in terms incorporated and which in terms as to streets has all "the power and authority now conferred upon or possessed by the common council." McCormick v. Park Comrs., 150 Ill. 522; Kansas City v. Ward, 134 Mo. 186; Kansas City v. Smart, 128 Mo. 286; Kansas City v. Bacon, 147 Mo. 259. (7) The powers of the board are closely guarded by the charter. It has no power to establish a street or boulevard. Charter, art. 3, p. 24; Art. 10, secs. 1, 5, 6, 7, 8, 9, 19, 24 and 34. (8) Sections 31, 34 and 37 of article 10, of the charter, nowhere invest the board with authority to establish boulevards -- they do not even attempt to rob the council of "its exclusive control and power over streets . . . to establish," etc., given by section 1, of article 3.

Cowherd & Ingraham, Ball & Ryland and Bowersock & Hall for respondents.

(1) There was complete compliance on the part of the property-owners with what the board required of them. The location of the roadway was determined and fixed by the board, as by the charter it was fully authorized to do. Charter and Rev. Ord. (1898), art. 10, secs. 4, 5, 6, 31, 34, 36 and 38. (2) The roadway being thus located, it was and is the public duty of the board to proceed with its construction, and the action lies to compel it to perform that duty and is in no sense "for the enforcement of a mere contractual obligation." (a) Because they are merely administrative and ministerial officers. Kansas City v. Ward, 134 Mo. 186; State ex rel. v. Berg, 76 Mo. 136; State ex rel. v. White, 34 Mo.App. 325; State ex rel. v. Olner, 116 Mo. 188; State ex rel. v. Chase, 42 Mo.App. 343; State ex rel. v. Meier, 72 Mo.App. 618, 143 Mo. 439; Dreyfus v. Longergan, 73 Mo.App. 336; State ex rel. v. Cook, 174 Mo. 100; State ex rel. v. Stokes, 99 Mo.App. 236; State ex rel. v. Smith, 104 Mo. 661. (b) Because the mere fact that the law vests them with certain discretion, does not alter the application of the rule. Kalbfell v. Wood, 193 Mo. 675; State ex rel. v. Adcock, 206 Mo. 550; State ex rel. v. Swanger, 212 Mo. 472; Klein v. People, 31 Ill.App. 302. (c) Because the building of the roadway is merely a ministerial act and the duty to build is imposed by law. Ruppenthal v. St. Louis, 190 Mo. 213; State ex rel. v. Railroad, 86 Mo. 13; Sheridan v. Fleming, 93 Mo. 321; State ex rel. v. St. Louis, 145 Mo. 551; State ex rel. v. Railroad, 206 Mo. 251; Printing Co. v. St. Louis, 213 Mo. 22; Charter and Rev. Ord., art. 10, as above; Sheaff v. People, 87 Ill. 189; People v. Commissioners, 158 Ill. 197; Drainage Dist. v. Adams, 61 Ill.App. 435; McCarty v. Boston, 74 N. E. (Mass.) 659; Ingerman v. State, 128 Ind. 225; State v. Road Co., 37 La. Ann. 589; State v. Bell, 49 La. Ann. 676; Richmond Co. v. Brown, 97 Va. 26; Brazoria Co. v. Bridge Co., 80 F. 10. (d) Because, the board having exercised its discretion in locating the roadway within the parkway, and having also exercised its discretion given by section 31, supra, as to the manner of payment for the construction, the contract with the property-owners was valid, and it was not competent for appellants to annul the prior action of the board and refuse to construct the road. Dausch v. Crane, 109 Mo. 323; State ex rel. v. Bell, 49 La. Ann. 676; Western v. Newberg, 67 Hun (N. Y.) 127; Borough of Rutherford v. Traction Co., 63 A. (N. J. L.) 84; State ex rel. v. Gates, 190 Mo. 558. (3) There was nothing in the contract of the property-owners (with which they fully complied) to taint or vitiate the action of the board. Borough of Rutherford v. Traction Co., supra. (4) No ordinance or action of the council was necessary, either for the location of this roadway within the parkway, or for its improvement when so located. Ample power and the plain duty to do both was the board's. Charter, as above. (5) Contentions made by appellants respecting the deeds are not only de minimis, but wholly immaterial. The dedications were not to be made until the roadway was "constructed and paid for."

LAMM, J. Burgess, Gantt, Fox and Woodson, JJ., concur; Valliant, C. J., and Graves, J., dissent. Valliant, C. J., in an opinion filed.

OPINION

In Banc.

LAMM J.

Mandamus. Relators below will be dubbed "plaintiffs;" respondents, "defendants." The alternative writ was made absolute below, commanding defendants as follows:

"Within a reasonable time and with reasonable expedition, as board, to cause to be graded and constructed the roadway on The Paseo extension in said city between the south line of Twenty-seventh street and the north line of Thirty-first street, so that said roadway between said Twenty-seventh street and Twenty-ninth street shall be located adjacent to the west line of said Paseo extension and located and constructed between said Twenty-seventh and Thirty-first streets in accordance with the plans and location therefor adopted by the board of park commissioners of said city on February 15, 1905, as shown by the plan and profile herein filed and referred to as 'Exhibit 2.'

"It is further considered, ordered and adjudged by the court that the cost and charge for the construction of said roadway be paid out of the South Park district funds, and that the relators have and recover of and from the defendants all the costs herein incurred in this cause and have thereof execution."

From that judgment defendants appeal here. Under spur of public welfare the cause was advanced and heard In Banc.

Troost Park at one time was a private park owned and managed by a street railway company, as we make out. Its size is dark, but we infer it is bounded on the north by Twenty-seventh street and lies between that and Twenty-ninth street on the south. The Paseo is a public parkway or park scheme in charge of defendants as a board of park commissioners. It extends a great ways, and at the point in hand runs nearly north and south. We infer that the name "Paseo" covers not only a boulevard proper, but at certain places includes...