St. Joseph Fire & Marine Ins. Co. v. Leland

• Decision Date: 06 December 1886
• Citation: 90 Mo. 177
• Court: Missouri Supreme Court
• Parties: ST. JOSEPH FIRE & MARINE INS. CO. v. LELAND.

90 Mo. 177

ST. JOSEPH FIRE & MARINE INS. CO.

v.LELAND.

Supreme Court of Missouri.

December 6, 1886.

Appeal from circuit court, Buchanan county,

B. R. Vineyard, for appellant, St. Joseph Fire & Marine Ins. Co. T. W. Heatley, for respondent, Leland.

HENRY, C. J.

This is an action to recover damages against defendant on the following alleged facts: That he is, and for six years last past has been, a member of the board of county commissioners of Doniphan county, Kansas, and chairman of said board, consisting of three members, whose duties are purely ministerial; that plaintiff, ever since defendant has been a member of said board, has owned and held a large number of bonds issued by said county in payment for stock subscribed by said county in the Denver City Railroad Company, and the Atchison & Nebraska Railroad Company; that it has been the duty of said board of commissioners, under the laws of Kansas, to annually levy, and cause to be collected, on the property in said county subject to taxation, a tax sufficient to meet and pay off the interest coupons of said bonds, as they matured, without any discretion to refuse to do so; that defendant not only failed to discharge said duty, but conspired with the other members of said board and other citizens of said county to cheat and defraud plaintiff out of the interest accrued and to accrue on said bonds; and, in furtherance of said conspiracy, the defendant induced the said board to disregard its said duty, and for six years last past has prevented said board from levying, and causing to be collected, any tax or money to pay the interest on said bonds. Then follows an allegation that plaintiff had instituted suits on interest coupons in the circuit court of the United States for the district of Kansas against said board, and recovered judgments,--one, thirteenth of June, 1879, for $4,626, and $200 costs of suit; one, seventeenth of June, 1881, for $4,150.13, and $200 costs; and another, on the same day, for $4,429.48, and $200 costs. That said court, by its peremptory writ of mandamus, commanded said board, and each member thereof, to levy a tax on all property in said county subject to taxation, on the first Monday in August, 1882, for the purpose of paying said judgments, etc.; but that defendant, for the purpose of carrying out said conspiracy, and in order to cheat and defraud plaintiff, refused to obey said mandamus, and induced the other members of the board to disobey said writ, although plaintiff was present, by its attorney, on said first Monday of August, 1882, at Troy, Doniphan county, Kansas, while said board was in session, to induce the board to discharge its duty, etc.; but defendant, then and there acting as chairman of said board, and in furtherance of said conspiracy, refused to permit plaintiff to be heard, and notified plaintiff that said judgments should never be paid. Wherefore plaintiff asks judgment against defendant for the amount of said judgments, etc. A demurrer to this petition was sustained, and a judgment rendered against plaintiff, from which this appeal is prosecuted.

Is the action maintainable in this state? Appellant's counsel cite cases in other states similar to that of Vawter v. Missouri Pac. Ry. Co., 84 Mo. 679, in which the ruling was different from that of this court in that case, in which the railroad company was sued in Missouri by the administrator of one who was killed by a train of defendant's cars in the state of Kansas, and sought to be held liable here, under a statute of that state materially different from ours on the same subject. We held that this could not be done. The common law gave no such action. The right to recover was purely statutory, and in this state the action is not maintainable by the administrator.

The right of action against a ministerial officer for a violation or neglect of duty, by one injured in consequence thereof, is a different matter. The common law gave the party aggrieved an action against the officer in such case.

There is authority for the broader position that “wherever, by either the common law or the statute of the...