United States v. Labette County

• Citation: 7 F. 318
• Parties: UNITED STATES v. LABETTE COUNTY.
• Decision Date: 01 January 1881
• Court: U.S. District Court — District of Kansas

7 F. 318

UNITED STATES v. LABETTE COUNTY.

United States Circuit Court, D. Kansas.

1881

Brown &amp Campbell, for relator.

B. W Perkins, for respondents.

The relator is plaintiff in a judgment recovered in this court in June, 1877, against Oswego Township, in the county of Labette, Kansas, for $9,221.34. By a peremptory writ of mandamus, issued August 2, 1878, the respondents, the Board of County Commissioners of Labette County, were commanded to 'levy and collect a sufficient tax upon all the taxable property in Oswego township, in the county of Labette and state of Kansas, to pay the above-mentioned judgment interest, and costs,' and 'to cause the said moneys to be paid over to the said Clarence F. Moulton upon the said judgement. ' The return to this writ showed that the respondents had levied a tax sufficient to pay off the relator's judgment, but did not show that the same had been collected or paid over. Thereupon, on motion of relator, a rule was issued requiring the respondents to show cause why they should not be committed for contempt in not obeying the writ. In answer to this rule the respondents say:

'That, as commanded by the peremptory writ of mandamus allowed herein, they levied, as provided by law, the tax therein directed to be levied, as will fully appear by their return to such writ heretofore filed herein and made part hereof, and by a stipulation signed and entered into by the parties hereto and made part hereof. They further say that they did not collect and pay over to the relator herein the taxes so levied, because they have no power, process, or authority by which they can collect or control the disposition of the taxes collected, except so much as may be collected for county purposes; that under the statutes of Kansas it becomes the duty of the county clerk to make out the tax rolls each year, and to enter thereon in proper form the several tax charges against each tract of land or item of personal property in the county; and it becomes the duty of the county treasurer to collect these taxes, and to disburse them as provided by law, and in the discharge of these duties those officers are supreme,-- answerable, however, upon their official bonds for any shortcomings or derelictions in the discharge of these powers; and your respondents say they are not in the law, and should not in fact be, held responsible for the conduct of other county officials; that in good faith they did everything that under the law they could do, as commanded by the said writ of mandamus, and hence pray that they may be discharged with their costs.'

To this return the relator demurs upon the ground that the same is not sufficient in law, and does not show any fact or legal reason why the respondents should not be adjudged in contempt.

McCRARY C.J.

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 neither 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 Remedies, Sec. 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 not competent for the court to devolve upon the respondents any official duty whatever; it was only competent to bring into action-- to compel the exercise of powers and duties conferred upon the respondents by law. It is said that this rule will operate oppressively upon the relator by requiring him to institute a separate proceeding in mandamus against each of the officers of the county charged with the performance of any duty in connection with levying, collecting, and paying over the taxes necessary for the satisfaction of his judgment. The court cannot presume that the officers of a county, sworn to perform these official duties, will so conduct themselves as to make this necessary, especially in view of the fact that the only possible result of such action would be to accumulate costs, to be paid in the end by their constituents. If, however, the apprehensions of counsel for relator in this regard should all be realized, it would still be our duty to declare and enforce the law as it is, regardless of consequences. The courts do not make the law, and they cannot change it to suit the convenience of litigants. The remedy by mandamus is appropriate and adequate. It may be repeated as often as the occasion requires; and, although the debtor corporation or its officers may delay the enforcement and final collection of a judgment by refusing to act, except under compulsion, the court rendering the judgment is clothed with ample power to enforce it. If the respondents, or the other county officials, so act as to make it necessary to multiply writs and add costs to the already heavy burdens of the debtor corporation, I see no way...