Steadley v. Stuckey

ELLISON, J. — The plaintiff, according to the official return of the votes, was elected'in the year 1898 to the office of county recorder for Jasper county for the term of' four years. The defendant was then county clerk of said county and ex-officio a member of the canvassing board of the election returns. Plaintiff charges that he and otlier members of the board refused to can- ■ vass the vote, as returned, for several weeks and until -compelled by mandamus from this court, and in consequence plaintiff lost the salary of the office of recorder of deed for that time. Plaintiff prevailed in the trial • court. A history of the proceedings which are the foundation of this action will be found in State ex rel. v. Stuckey, 78 Mo. App. 533. It will there be learned that defendant found in the return to him made by the election officers of one precinct there was, in addition to the cer [585] tificate required by law, another and unauthorized certificate. Each of these, contained a statement of the number of votes cast for this plaintiff and his opponent. In the certificate authorized and required by law this plaintiff was credited with enough votes to elect him; hut by the unauthorized certificate, his vote was not sufficient to elect him. As stated, the defendant and his. colleagues refused to recognize the proper certificate and plaintiff was thereby kept out of his office and deprived of the salary thereof for several weeks. It is conceded that ■defendant’s action was taken in good faith. The law in this State is that, the duty of defendant as a member of the canvassing board was purely ministerial. It was so determined in the mandamus case against him above referred to. The duty is said to he “a simple and plain ministerial duty of the clerk aided .by the two magistrates requiring sufficient knowledge of arithmetic and moral honesty to count correctly and clerical .ability to make the certificate.” [Bowen v. Hixon, 45 Mo. 343.] It being a ministerial duty left unperformed, the defendant must render compensation to those whom he has injured by his failure to perform it. As far as compensation for loss is concerned, the plea of good faith, honest mistake and the. like is of no avail, since it does not make good the loss he has occasioned. “It is a well-settled rule that where the law requires absolutely a ministerial act to he done by a public officer and he neglects or refuses to do the act, he is ,liahle in damages at the suit- of a person injured. In such cases a mistake as to his duty and án honest intention is no defense.” [Knox County v. Hunolt, 110 Bio. 74; Ins. Co. v. Leland, 90 Mo. 182-3; State ex rel. v. Adams, 101 Mo. App. 472; Moore v. Kesler, 59 Ind. 152: Thomas v. Hinkle, 35 Ark. 450.] The defendant offered to show in mitigation of the damages resulting to plaintiff by being deprived of his [586] salary, that he earned during that time as much or more than such salary as a jeweler. The court excluded the evidence. We need not pass on the question since it was not set up as a defense in the answer. If a defense, it is new matter which should have been pleaded. In all instances where other employment is allowed to mitigate the‘damages alleged to have been suffered, the onus is on the defendant to prove such fact; and, of •course, he must plead it. Whether the law concerning breach of contract between master and servant and damages to the latter by reason of not being allowed to perform the service, is sufficiently analogous in principle to the law governing a case of the present character, we need not, and do not say; but in such cases it is well recognized that the onus of establishing the mitigation is on the defendant and must be pleaded by him. [Koenigkraemer v. Glass Co., 24 Mo. App. 124; Wood on Master and Servant, sec. 125; Ream v. Watkins, 27 Mo. 516.] Other objections made by defendant are not well taken. The judgment is affirmed.