Reed v. Conway

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRYLAND
Citation20 Mo. 22
PartiesREED, Respondent, v. CONWAY, Appellant.
Decision Date31 October 1854

20 Mo. 22

REED, Respondent,
v.
CONWAY, Appellant.

Supreme Court of Missouri.

October Term, 1854.


1. Where ministerial officers are required to exercise their judgment, they are not liable for any errors, in the absence of malice. So, a surveyor general is not liable to an action for revoking the commission of a deputy surveyor, annulling a surveying contract, and refusing to receive and examine the field notes, where, without malice and in good faith, he exercises his judgment.

Appeal from St. Louis Circuit Court.

[20 Mo. 23]

This was an action on the case, commenced in 1846, by Warren Reed against Frederick R. Conway, then surveyor general of Illinois and Missouri. The declaration contained four counts.

The first count averred that on the tenth day of May, 1845, Silas Reed, then surveyor general of Illinois and Missouri, entered into certain articles of agreement, under seal, with the plaintiff, by which it was witnessed and agreed that the plaintiff would, under his own personal and immediate superintendence, and not by sub-contract, execute certain surveying in the state of Missouri, agreeably to the laws of the United States and such instructions as might be given him by said Silas Reed, viz: that he would survey or subdivide into sections, and establish proper corners thereto, townships 65, 66 and 67 north, in ranges 39 and 40 west, and meander the navigable water courses therein, if any, all being north of the base line, and west of the fifth principal meridian; and that the plaintiff would complete the aforesaid surveys and make return to the office of the surveyor general of his original field notes together with a fair and correct copy thereof, and a separate plat of each of the townships subdivided, within six months from July, 1, 1845; and it was further agreed in and by said articles that, on completion of the work, there should be paid to the plaintiff out of the appropriation of March 3, 1845, for the survey of the public lands, direct from the treasury department, as a full compensation, at the rate of three dollars per mile, for every mile and part of a mile which should be actually surveyed and marked, random lines and offsets not included, provided the surveys, field notes, copies of field notes and plats, when returned, should be approved by the surveyor general; that the said articles, in all their terms and stipulations, were conformable to the laws of the United States and the usages, rules and regulations of the department having charge and superintendence of the public lands; that before entering into the performance of

[20 Mo. 24]

said articles, the plaintiff took an oath faithfully and impartially to execute and fulfil the duties of a deputy surveyor, a certificate of which oath was indorsed on said articles, and did also enter into bond to the United States, with good and sufficient security, in the sum of two thousand dollars, for the faithful performance of said articles; that on the 24th of May, 1845, said Silas Reed was removed from said office of surveyor, and the defendant appointed thereto in his place; that the plaintiff performed the work according to the articles of agreement, and on the third of March, 1846, returned to the office of the defendant his original field notes, together with a fair and correct copy thereof, and a separate plat of each of the townships subdivided, and requested the defendant, as surveyor aforesaid, to receive and file in his office said field notes, copies and plats, examine and approve the same, and furnish to the plaintiff a certificate of such examination and approval, as by the duty of his said office, defendant was holden to do; and that the defendant, not regarding the duty of his office, but maliciously contriving and intending to injure and oppress the plaintiff, and wrongfully to deprive him of his just rights and dues under and by virtue of the articles aforesaid, did wilfully, maliciously and unlawfully, and without any just or reasonable cause, refuse to give a certificate of his approval or examination of said field notes, copies and plats, or any or either of them, or to examine, or in any way inspect the same, or to receive the same into his said office to be filed, or to permit them to be filed therein; by means of which plaintiff had been prevented from receiving any compensation for his labor.

The second count was like the first, except that it did not aver a performance of the work, but in lieu thereof, that the plaintiff set about preparing to complete and fulfil the contract on his part, and therein expended much time and money, and that he was ready and willing, and offered to the defendant, as such surveyor as aforesaid, to complete and fulfil the said contract, according to its true intent and meaning; but the defendant, well knowing the premises, but contriving and maliciously

[20 Mo. 25]

intending to injure and harass the plaintiff, and to deprive him of all benefit and advantage under his said contract, and to subject him to heavy loss and damage, did, in his capacity as surveyor as aforesaid, wilfully, maliciously and unlawfully, and in manifest violation of the duty of his said office, and without any just and reasonable cause, by his order in writing, declare the said contract to be null and void, and prohibit the plaintiff from fulfilling or attempting to fulfil said contract, according to its true intent and meaning.

The third count charged that the defendant, contriving and maliciously intending to injure and oppress the plaintiff, &c., in his capacity of surveyor as aforesaid, an the 29th of May, 1845, wilfully, maliciously, and unlawfully, and in breach of the duty of his office, and without any just and reasonable cause, by his order in writing, did suspend the operation of said contract for an indefinite time thereafter, and did prohibit the plaintiff from fulfilling said contract and commencing any operations thereunder, and did continue such suspension and prohibition, during all the time mentioned in the contract for the fulfillment of the same, and thereby did hinder, obstruct, and prevent the plaintiff from fulfilling the same.

The fourth count was substantially the same as the first, differing in no material respect, except that it avers a suspension of the contract for a space of time by the defendant, whereby plaintiff was prevented from completing it within the time limited by its terms; but it avers that he then went on and did the work with all practicable diligence and dispatch.

The defendant pleaded “not guilty.”

At the trial, the plaintiff read in evidence the following letter of instructions from the commissioner of the general land office to Silas Reed, under which the latter acted in making the contract. Portions of the letter are omitted:

GENERAL LAND OFFICE, April 15, 1845.

SIR: By the act of congress entitled “An act making appropriations for the civil and diplomatic expenses of the government for the year

[20 Mo. 26]

ending June 30th, 1846, and for other purposes,” approved March 3, 1846, $1200 were appropriated for the correction of erroneous and defective surveys in Illinois and Missouri, at a rate not exceeding six dollars per mile; and of the $100,000 appropriated by the same act for surveying the public lands, in addition to the unexpended balance of former appropriations, &c., the sum of $14,500 has been apportioned to your district for surveys, and $1,573 for incidental expenses, making a total for these objects of $16,073.

According to the estimate submitted in your last annual report, the first mentioned appropriation will enable you to complete all the erroneous and defective surveys therein referred to. The sum of $16,073, apportioned to your district, is much smaller than the amount asked for, congress having appropriated only $100,000, for the general purposes of surveying, instead of $135,000 contained in the estimate of this office for that object; consequently, you will not be able to have all the work executed which is embraced in your estimate.

You will therefore contract for the survey of such of the lands only embraced in your estimate, as will best subserve the public interests, by commanding ready sale, or accommodating the settlers. The surveys on the northern boundary of Missouri may be closed upon Sullivan's line, as far west as the surveys have been closed on that line in Iowa. * * * As these appropriations are for the services of the year ending June 30th, 1846, they will not be applied in payment for work executed prior to June 30th, 1846, without special instructions; but as that period will probably arrive before the deputies can make their arrangements to take the field, you will at once contract for this work, using the most rigid economy which may be consistent with its correct execution, and under no circumstances will you pay more than the average price per mile fixed by law, or contract for a greater amount of surveying than will be covered by your apportionment; and that there may be no risk on this point, you will so estimate the amount of surveying in

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each contract that the amount estimated shall not certainly fall short of the actual amount of surveying to be done in it. * * *

Very respectfully, your obed't serv't.

THOMAS H. BLAKE, Com'r.

The plaintiff then read in evidence the contract between Silas Reed, surveyor general, and himself. It bore date May 10, 1845, and was in its terms as stated in the first count of the declaration....

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24 practice notes
  • Burns v. Reed, No. 89-1715
    • United States
    • United States Supreme Court
    • May 30, 1991
    ...i.e., could be defeated by a showing of malice. See, e.g., Billings v. Lafferty, 31 Ill. 318, 322 (1863) (clerk of court); Reed v. Conway, 20 Mo. 22, 44-52 (1854) (surveyor-general); Weeks, supra, at 210 and n. 8; J. Bishop, Commentaries on Non-Contract Law § 786, pp. 365-366, and n. 1 (188......
  • State v. American Surety Co. of New York
    • United States
    • Idaho Supreme Court
    • December 31, 1914
    ...any court would be justified in holding the commissioner liable for an abuse of discretion in failing to close a bank. (Reed v. Conway, 20 Mo. 22; Jenkins v. Waldron, 11 Johns. (N. Y.) 114, 6 Am. Dec. 359.) On official bonds there can be no liability and no recovery without malice alleged a......
  • Southers v. City of Farmington, No. SC 88612.
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 2008
    ...As with the doctrine of sovereign immunity, Missouri has long-applied the doctrine of official immunity. See, e.g., Reed v. Conway, 20 Mo. 22 (1854).7 This judicially-created doctrine protects public employees from liability for alleged acts of negligence committed during the course of thei......
  • Lucas v. Mfg. Lumbermen's Underwriters, No. 37663.
    • United States
    • United States State Supreme Court of Missouri
    • May 5, 1942
    ...judgment as to law or facts. State ex rel. Funk v. Turner, 17 S.W. (2d) 986; 22 R.C.L. 485-6; Pike v. Megoun, 44 Mo. 491; Reed v. Conway, 20 Mo. 22; Sharp v. Kurth, 245 S.W. 636. (4) O'Malley was directed by orders of court to pay all of the disallowed items. Perrin & Smith Printing Co. v. ......
  • Request a trial to view additional results
24 cases
  • Burns v. Reed, No. 89-1715
    • United States
    • United States Supreme Court
    • May 30, 1991
    ...i.e., could be defeated by a showing of malice. See, e.g., Billings v. Lafferty, 31 Ill. 318, 322 (1863) (clerk of court); Reed v. Conway, 20 Mo. 22, 44-52 (1854) (surveyor-general); Weeks, supra, at 210 and n. 8; J. Bishop, Commentaries on Non-Contract Law § 786, pp. 365-366, and n. 1 (188......
  • State v. American Surety Co. of New York
    • United States
    • Idaho Supreme Court
    • December 31, 1914
    ...any court would be justified in holding the commissioner liable for an abuse of discretion in failing to close a bank. (Reed v. Conway, 20 Mo. 22; Jenkins v. Waldron, 11 Johns. (N. Y.) 114, 6 Am. Dec. 359.) On official bonds there can be no liability and no recovery without malice alleged a......
  • Southers v. City of Farmington, No. SC 88612.
    • United States
    • United States State Supreme Court of Missouri
    • June 10, 2008
    ...As with the doctrine of sovereign immunity, Missouri has long-applied the doctrine of official immunity. See, e.g., Reed v. Conway, 20 Mo. 22 (1854).7 This judicially-created doctrine protects public employees from liability for alleged acts of negligence committed during the course of thei......
  • Lucas v. Mfg. Lumbermen's Underwriters, No. 37663.
    • United States
    • United States State Supreme Court of Missouri
    • May 5, 1942
    ...judgment as to law or facts. State ex rel. Funk v. Turner, 17 S.W. (2d) 986; 22 R.C.L. 485-6; Pike v. Megoun, 44 Mo. 491; Reed v. Conway, 20 Mo. 22; Sharp v. Kurth, 245 S.W. 636. (4) O'Malley was directed by orders of court to pay all of the disallowed items. Perrin & Smith Printing Co. v. ......
  • Request a trial to view additional results

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