State v. Hudson

Citation126 S.W. 733,226 Mo. 239
PartiesSTATE ex rel. PORTER et al. v. HUDSON et al., Board of Park Com'rs.
Decision Date07 March 1910
CourtUnited States State Supreme Court of Missouri

The Kansas City charter gives the board of park commissioners power to adopt a system of boulevards, etc., when authorized and approved by ordinance by the common council, declares that the contract for any improvement shall be let by the board in such manner as provided by ordinance, gives the common council power to agree to trusts and conditions prescribed by the grantors granting property to the city for the purpose of boulevards, etc., and provides that real estate may be conveyed to the city for the purpose of boulevards, etc., on such conditions as may be agreed to by the common council. The owners of property proposed to the board of commissioners that, if they would construct a boulevard contiguous to their property, they would pay a portion of the expense for the improvement and make certain conveyances to the city, which proposition was accepted by the board. The property owners tendered their check, and deeds which contained conditions that, in the event of the abandonment of the city of the land as a boulevard, it should revert to the grantors, and thereafter the board rescinded the arrangement. Held, that the property owners could not enforce performance of the arrangement by mandamus.

10. MANDAMUS (§ 154)AMENDMENT OF PETITION AND WRIT.

A plaintiff in mandamus may be permitted to amend his petition and writ in accordance with the proofs.

Valliant, C. J., and Graves, J., dissenting.

In Banc. Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Mandamus by the State, on the relation of J. L. Porter and others, to compel Franklin Hudson and others, composing the Board of Park Commissioners of Kansas City, to cause a certain roadway to be constructed. From a judgment making the alternative writ absolute, respondents appeal. Reversed.

Jno. T. Harding, City Counselor, W. L. Lampkin, Asst. City Counselor, and C. O. Tichenor, for appellants. Bowersock & Hall, Ball & Ryland, and Cowherd & Ingraham, for respondents.

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 ground on one or the other side devoted to public park purposes, thereby swelling out to the limit of a park, anon dwindling to a boulevard. At a certain time Troost Park was condemned and taken over by the city, under the exercise of its charter right of eminent domain, as part of the Paseo scheme. Plaintiffs owned lots and parcels of land abutting Troost Park on the west for two blocks or more, say from Twenty-Seventh street to Twenty-Ninth street; said streets not crossing Troost Park. They also owned the land abutting on the west side of the Paseo extension from Twenty-Ninth on south to Thirty-First street.

In February and April, 1905 (whether on the initiative of plaintiffs, or of the then existing board, we do not clearly make out) negotiations were on foot between plaintiffs and the then board looking to the location of a permanent "roadway" along the western line of the Troost Park property; Troost Park having then become part and parcel of the Paseo, as said. There was a lake in Troost Park. It seems that a permanent roadway of some sort was contemplated through this Troost Park at the time the property was condemned; such roadway to become a southern extension of the boulevard, a part of the Paseo scheme. It seems the engineer or landscape architect of the board at the time of the condemnation proceedings made a preliminary study or sketch in the form of a drawing or map showing the contemplated roadway running to the east of plaintiffs' property, close to this lake between Twenty-Seventh and Twenty-Ninth, so that plaintiffs' property would not touch the roadway as tentatively designed; but the latter, between said points, ran wholly inside the lines of Troost Park, and hence would not be a service street for plaintiffs' property. It seems, moreover, that the same tentative map or sketch showed the proposed roadway as then planned would run along the line of plaintiffs' property from Twenty-Ninth street south to Thirty-First street, which latter was the southern terminus of the Paseo so far as shown by this record. The said negotiations looked towards shoving the roadway farther to the west, between Twenty-Seventh and Twenty-Ninth streets, so that plaintiffs' property would there abut thereon, and to permanently locate and build it on that line.

The charter of Kansas City provides for a public record to be kept by the board. The engineer's study or sketch aforesaid was preserved by the board, but it made no record locating such roadway by the lake. If, however, the roadway be built by the lake remote from the grounds of private abutting proprietors, the charter scheme did not contemplate that the costs of grading and building it should be assessed against private property by special tax bills. To the contrary, the costs of grading and building that part of the roadway would come out of the city's common purse, or out of general park funds.

It is contended by plaintiffs that the negotiations aforesaid resulted in a binding contract, whereby it became a public duty of the board to locate, grade, and build a permanent roadway 40 feet wide from gutter to gutter, with a sidewalk running along the west side thereof in a 20-foot strip, part of which was owned by the city and part by said abutting proprietors — the latter at plaintiffs' expense. The facts upon which this contention is based will be presently attended to.

The board conducting and consummating those negotiations presently went out of office, and the present defendants were appointed, qualified as a board, and assumed the administration of the public trust. At some time in 1905 not disclosed, on demand the law department of the city gave an opinion to the board of park commissioners to the effect that it and the city were not bound by those negotiations nor by the contract resulting therefrom. Thereupon in July, 1905, the board rescinded its action, refused to go on, and the present controversy arose, resulting in an absolute mandamus, as said.

The case holds in judgment certain provisions of article 10 of the charter of Kansas City and demands a closer review of the facts; which provisions and facts, briefly outlined, are:

The charter:

Article 10 of the charter was adopted at an election held June 6, 1895. Its title is: "Board of Park Commissioners — Establishment and Maintenance of Parks and Boulevards."

Section 1 recites, inter alia, that "there is hereby established within the city an executive department to be known as `board of park commissioners,'" composed of five persons to serve without pay, not subject to confirmation but to be appointed by the mayor.

Sections 2 and 3 require bonds from the commissioners, that a record be kept of its proceedings, etc.

Section 4 provides that the president shall sign all contracts authorized by this article, that three...

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