7 F. 318 | U.S. Cir. Ct. | 1881
1. Assuming that the return is true in fact, does it excuse the board of county commissioners from the performance of so much of the command of the writ as ordered them to collect and pay over, as well as to levy, the taxes to pay relator’s judgment? The excuse offered is, in brief, that although commanded to levy, collect, and pay over, the respondents are powerless to do more than levy, since the law devolves the duty of collecting and paying over upon another officer of the county, the treasurer, who can only act upon tax rolls to be prepared by the county clerk. The office, and the only office, of the writ of mandamus, when addressed to a public officer, is to compel him to exercise such functions as the law confers upon him. When the law enjoins upon such an officer the performance of a specific act or duty, obedience to the law may, in the absence of other adequate remedy, be enforced by this writ. But the writ neithers creates nor confers power upon the officer to whom it is directed. It can do no more than to command the exercise of powers already existing. High on Extraordinary Bemedies, § 32; Johnson v. Lucas, 11 Humph. 306; Houston Tap. etc., R. Co. v. Randolph, 24 Tex. 317; Williams v. Smith, 6 Cal. 91; People v. Forquer, Breese, 68; United States v. County of Clark, 95 U. S. 769.
These principles are established, not only by the cases here cited, but also by many others. Indeed, they are among the elementary and fundamental principles of the law of mandamus. Applying them to this case, we are brought inevitably to the conclusion that so much of the mandate of the writ as commanded the respondents to perform duties which they had, 'under the law, no power to perform, was void. It was
*322 “ The remedy is, in law and in theory) adequate and perfect. The difficulty is in its execution only. The want of a remedy, and the inability to obtain the fruits of a remedy, are quite distinct, and yet they are confounded in the present proceeding. * * * * The legal remedy is adequate and complete, and time and the law must perfect its execution.”
2. It is suggested, by counsel for the relator, that the board of county commissioners are authorized, by the terms of section 6, c. 107, Laws of Kansas of 1876, to levy and collect the taxes necessary to pay the judgment. That section is as follows:
“Whenever any bonds shall be issued in pursuance of the foregoing provisions, it shall be the duty of the board of county commissioners, or the mayor and counsel of the city, to levy and collect annually, in addition to other taxes, a tax on all taxable property in such county, township, or city, sufficient to pay the interest on such bonds as the same shall become due, and to create a sinking fund sufficient to pay said bonds at ma turity; and such tax shall be collected as other taxes are collected, and paid out by the treasurer, upon presentation of the coupons or bonds when due at the treasurer’s office, or at such place as may be specified in the petition or proposition herein mentioned.”
This section prescribes no new mode of collecting and paying over these particular taxes. It must be construed as applying the machinery afforded by pre-existing laws to the collection and disbursement of the taxes provided for in that act. True, it provides in general terms that the board of comity commissioners shall “levy and collect” the taxes, but it also, in the same sentence, declares that “such taxes shall be collected as other taxes are collected.” This last provision only makes clear what would probably have been the meaning of the section without it, since a general provision directing the board of commissioners to collect a particular tax could hardly be held to go further than to require them to proceed, according to law, to perform that duty through the proper officers and agencies. The section further provides that the tax, when collected, shall be “paid out by the treas■urer on presentation of the coupons or bonds when due at the treasurer’s office,” etc., which clearly shows that the board of county commissioners were not empowered to perform that duty. Inasmuch as this section provides for the collection of the tax “as other taxes are collected,” it becomes
(i) That the taxes shall he levied by the board of county commissioners; (2) that the tax roll shall he prepared by the county clerk; (3) that the taxes shall be collected and paid overby the treasurer.
3. it is insisted that the performance of all the foregoing duties by the several officers above named may be commanded by a single writ addressed to the board of county commissioners alone. It is said that, under the law of Kansas, each county is a corporation under the name and style of “The Board of County Commissioners of the County of --, ” and that, therefore, a writ addressed to the board is addressed to the corporation, and may command the board, through its several agents, to perform all the duties commanded by the writ. Each organized county within the state of Kansas is a body corporate and politic; and, in all suits by or against a county, the name in which the county shall sue or be sued shall be the “Board of County Commissioners of the Comity of---Chapter 25, Comp. Laws of Kansas; 1879, §§ 1, 5. In Commissioners v.Sellew, 99 U. S. 624, the supreme court says:
“As the corporation can only act through agents, the courts will operate upon the agenls through the corporation. When a copy of the writ, which has been ordered, is served upon the clerk of the board, it will be served on the corporation, and be equivalent to a command that*324 the persons who may he members of the board shall do what is required. If the members fail to obey, those guilty of disobedience may, if necessary, be punished for contempt.. Although the command is in form to the board, it may be.enforced against those through whom alone it can be obeyed. * * * * The board is in effect the officer, and the members of the board are but the agents who perform its duties. While the board ■is proceeded against in its corporate capacity, the individual members are punished in their natural capacities for failure to do what the law requires of them as the representatives of the corporation.”
In that case the question was whether the writ was properly addressed to the board in its corporate capacity, and it . was held that such was the proper practice; that the writ once served is retained until the thing is done which is commanded, and it “may at all times be enforced through those who are, for the time being, charged with the obligation of acting for the corporation.” It is not decided that a mandamus addressed to the board may command the performance of duties which the law devolves upon the clerk and the treasurer; no such question was considered. The question in the present case is, can the members of the board of county commissioners be punished for contempt in failing to collect and pay over the tax levied by them to pay relator’s judg,ment ? It is insisted that it was ^the duty of all the officers of the county, including the clerk and treasurer, to take notice of and obey the mandate of the writ addressed to the board. If this were granted, it would not follow that the board should be held in contempt; for, if the writ can be regarded as addressed to and operating upon the clerk and treasurer, then those officers may be in contempt for failing to obey it, while the board, if it has performed its duty fully, may be exonerated. The members of the board cannot be punished for a failure of the clerk and treasurer to discharge their duties. But I should have great difficulty in holding that the clerk and treasurer could be punished for failing to obey a writ not-addressed to or served upon them, and which does not name them, or command them in terms to do anything. I am not prepared to say that, in such a case as the present, the writ might not run against the corporation, and be served upon the several officers who have duties to per
4. Counsel for relator have suggested that the board have not done all that was in their power in their endeavor to obey the writ. It is said that they might, after levying the tax, institute proceedings in mandamus to compel the other officials of the county to go on and collect and pay over, and that they might sue such officials on their official bonds for damages for their failure to do so. I suppose.the board could do either or both of these things; and, if relator insists, an order may issue directing them to institute such proceedings, or to show cause why they have not done so. But I think the counsel will, upon a little reflection, conclude that the relief he would obtain in this way would probably prove to be very inadequate. No other remedy is likely to be found so effectual as that which is afforded by the writ of mandamus issued by the court in which the judgment is rendered, and addressed to the official or officials whose duty it is to levy, collect, and pay over the taxes requisite for the satisfaction of the judgment.
The demurrer is overruled.