Hughlett v. City of Wellsville

Biggs, J. — This is an action against the city of Wellsville, its mayor, board of aldermen and clerk, to recover as damages the fees and emoluments of the office of marshal of the city from July 31, 1895, to April 6, 1897. The petition avers substantially that at a special election held in the city of Wellsville on July 30, 1895, the plaintiff was duly elected to the position of marshal of the city; that the mayor, clerk and board of aldermen cast up the vote and declared that the plaintiff had received the highest number of votes; that subsequently the members of the board unlawfully and wrongfully determined that the plaintiff was ineligible by reason of his removal from the office a few months before, and they.ordered a new election, which was held; that subsequently the plaintiff qualified by taking the oath of office and giving the requisite bond, and that he thereupon demanded of the defendants that a certificate of election be issued 345 to him, which was refused. The petition contains the further averment that by reason of these unlawful and wrongful acts of the defendants the plaintiff had been deprived of the fees of said office to which he had been lawfully elected; that the fees for the term amounted to $700; that he had been damaged in that amount, for which judgment was asked. The circuit court sustained a general demurrer to the petition and the plaintiff having refused to plead further a final judgment .was entered on the demurrer. The plaintiff has appealed. It is not questioned by the respondents that officers of a city are, under certain circumstances, responsible in damages for wrongful and malicious acts in the discharge of purely ministerial duties. (Ins. Co. v. Leland, 90 Mo. 177; Knox Co. v. Hunolt, 110 Mo. 75.) But they insist that to render them liable in the present action it would be necessary for plaintiff to prove, either that he was lawfully in possession of the office and had been wrongfully ousted from it, or that his right to it had been finally established by proper proceedings. This is the doctrine of State ex rel. v. Sherwood, 42 Mo. 179, and Hunter v. Chandler, 45 Mo. 452, and it is sound law, for it is but reasonable that before a person can lay claims to the fees and emoluments of an office he must first establish his right to the office itself. As the petition failed to state either that the plaintiff was in possession of the office and had been wrongfully ousted, or that his claim or-title to the office had been legally determined, the demurrer was rightfully sustained. With the concurrence of the other judges, the judgment of the circuit court will be affirmed. It is so ordered.