The United States ex rel. v. Labette County. 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. Brown & Campbell, for relator. B. W. Perkins, for respondents. MCCRARY, Circuit Judge.-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, § 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. For.. quer, Breese, 68; United States v. County of Clark, 95 U. S. 769. The United States ex rel. v. Labette County. 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 in which this court can prevent it. In the case of Rees v. City of Watertown, 19 Wall. 107, the supreme court of the The United States ex rel. v. Labette County. United States was asked to sanction a departure from the usual course of proceedings in cases of this character, upon the ground that the municipality had disregarded the mandate of a mandamus, alias mandamus and pluries mandamus, commanding it to levy a tax to pay the relator's judgment; and the officers, to avoid obedience, had resigned their offices, so that there seemed to be little prospect of enforcing the judg ment by the ordinary means. Nevertheless the court said: "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." to 2. It is suggested by counsel for the relator that the board of county commissioners are authorized by the terms of sec. 6, ch. 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 council of the city, to levy and collect annually, in addition to other taxes, a tax on ali taxable property in such county, township or city, sufficient pay the interest on such bonds as the same shall become due, and to create a sinking fund sufficient to pay said bonds at maturity; 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 county commissioners shall "levy and collect" the taxes; but it also, in the same sentence, declares that "such The United States ex rel. v. Labette County. 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 treasurer 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 necessary to inquire how other taxes are collected under the statutes of Kansas. It is conceded that it is the duty of the county board to make the levy. Who is to collect and pay over? By section 83, chapter 107, Compiled Laws of Kansas, 1879, it is made the duty of the county clerk to prepare annually, immediately after the first Monday in August, a tax roll, which roll he shall, on or before the first day of November, deliver to the county treasurer, charging him "with the amount of the respective taxes assessed on the tax roll." Subsequent provisions of the same chapter provide for the collection of taxes by the treas urer. I have already cited the provision of the statute which makes it the duty of the treasurer to pay over the particular taxes under consideration to the parties entitled thereto. It appears then that the statute requires: 1. That the taxes shall be levied by the board of county commissioners. 2. That the tax roll shall be prepared by the county clerk. 3. That the taxes shall be collected and paid over by 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 laws of Kansas, each county is a corporation under the name and style of "The Board of County Commissioners of the County of The United States ex rel. v. Labette County. 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 County of." Ch. 25, Comp. Laws of Kansas, 1879, secs. 1 and 5. In Commissioners v. Sellew, 99 U. S. 624, the supreme conrt says: "As the corporation can only act through agents, the courts will operate upon the agents 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 the persons who may be 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, * * * |