# State ex rel. Porter v. Hudson

> Supreme Court of Missouri · March 7, 1910 · 226 Mo. 239

URL: https://www.frixlaw.com/law-library/cases/8017132

## Case

- **Full name:** THE STATE ex rel. J. L. PORTER v. FRANKLIN HUDSON, Composing Board of Park Commissioners of Kansas City
- **Court:** Supreme Court of Missouri
- **Decided:** March 7, 1910
- **Citations:** 226 Mo. 239; 126 S.W. 733; 1910 Mo. LEXIS 62
- **Precedential status:** Published
- **Opinion:** Dissent by Yalliant
- **Judges:** Burgess, Fox, Gantt, Graves, Lamm, Valliant, Woodson, Yalliant
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8017132

## Opinion text

DISSENTING OPINICN.
YALLIANT, C. J.
I am unable to concur in the conclusions reached by my learned Brother Lamm in this case.. Mandamus of course cannot be used to control an officer in the exercise of his discretion, *272 but when the officer has exercised his discretion and in the exercise thereof has made a decision which he had authority to make, and on that decision has made a contract he also had authority to make, his discretion has ended; the performance or repudiation of his contract is not then in his discretion. The park commissioners had authority to locate this roadway either with or without agreement with the interested property-owners; they saw fit to enter into negotiations with the property-owners, and having done so, they did locate it and accepted the consideration that relators agreed to pay; that ended their discretion. If they had seen fit to do so they had authority in law to construct the roadway where they had agreed to construct it. It would have been no breach of their official duty to have done so. What they now claim is discretion to violate their contract.
As to the point that the petition for mandamus asks for more than the relators, under the contract, were entitled to, that is, to carry the boulevard as far as Thirty-first street, if that is so, the court by proper proceedings could have had the record amended so as to limit the remedy to what the contract calls for.
This is, as claimed, in a sense, an executory contract, but relators on their part have performed it, and if the park commissioners are allowed to do what they are claiming the right to do they may if they choose go on and build the roadway on another line, shut out the property of relators, and relators will have no remedy for the wrong; mandamus is the only remedy they can have. Even a judgment in damages for a breach of the contract would not give them what they paid their money for. In my opinion, the judgment ought to be affirmed.
Judge Graves agrees with me in this opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8017132. Public record. Not legal advice.