A county in Kansas is a body politic whose powers are exercised
by a board of county commissioners, and when it is sued, process
must be served upon the clerk of the board. Where, therefore, a
mandamus was awarded against it,
l. That the writ was properly directed to it in its corporate
2. That service of a copy of the writ upon the clerk is service
upon the corporation, and the members of the board who fail to
perform the required act are subject to be punished for
The facts are stated in the opinion of the Court.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
In the State of Kansas, counties are bodies corporate and
politic, capable of suing and being sued. Their powers are
exercised by boards of county commissioners chosen by the electors.
The name by which they can sue or be sued is the "Board of County
Commissioners of the County of _____." In legal proceedings against
a county, process is served on the clerk of the board. 1 Dassler's
Kans.Stat. 217-221, sec. 1, 3, 5, 6, 9.
The boards of county commissioners are authorized "to apportion
and order the levying of taxes as provided by law," 1 id.
224, sec. 16, sub. 4, and they are required to meet on
Page 99 U. S. 625
the first Monday in August of each year to "estimate and
determine the amount of money to be raised by tax for all county
purposes, and all other taxes they may be required by law to levy."
1024, sec. 83.
Whenever a judgment is rendered against the board of county
commissioners of a county, no execution shall issue, but the
"shall be levied and collected by tax, as other county charges,
and, when so collected, shall be paid by the county treasurer to
the person to whom the same shall be adjudged, upon the delivery of
the proper voucher therefor."
221, sec. 8.
By an act of the legislature of the state approved Feb. 10,
1865, and proceedings thereunder, the board of county commissioners
of the County of Leavenworth were authorized to subscribe to the
capital stock of the Leavenworth and Missouri Pacific Railroad
Company, and to issue bonds in payment of the subscription. Under
this authority, a subscription was made and bonds issued bearing
date July 1, 1865, and falling due July 1, 1875.
On the 29th of November, 1875, Sellew, the defendant in error,
recovered judgment in the Circuit Court of the United States for
the District of Kansas against the Board of County Commissioners of
the County of Leavenworth upon part of the bonds so issued for
$19,923.40 and costs of suit. On the 9th of October, 1877, he made
known to the court by affidavit that on the 6th of August previous
he had demanded of the board of county commissioners that they
should levy a tax to pay his judgment, and that they had failed to
do so. He then obtained from the court an alternative mandamus
directed to the board of county commissioners and to John S. Van
Winkle, Ebenezer W. Lucas, and William S. Richards, individual
members of the board, directing that they levy the tax immediately,
or show cause, on the 26th of November, 1877, why it had not been
done. Copies of this writ were in due form served on the clerk of
the board and upon each of the individual members. On the return
day, the board, appearing for the purpose of the motion only, moved
to quash the alternative writ because it did not state facts
sufficient to authorize the issue of a peremptory writ, and the
several individual members answered, stating
Page 99 U. S. 626
that the board met on the first Monday in August, 1877, and
estimated and determined the amount of money to be raised by
taxation for all purposes for the year 1877; that having completed
their labor, they adjourned sine die;
that in due time
afterwards the tax lists were made out, and on the 1st of November
put in the hands of the treasurer for collection; that a part of
the taxes so levied and collected had already been paid; that the
judgment mentioned in the alternative writ was not rendered on any
of the kinds of indebtedness mentioned in the proviso of sec. 1, c.
90, of the Session Laws of 1876; and that on the 6th of November,
at the general election of county officers, Van Winkle and Lucas
were not reelected as members of the board, but that other persons
were elected in their places, and that by reason thereof they would
not be members of the board after their present term expired.
Chapter 90 of the Session Laws of 1876 was an act relating to
taxation in Leavenworth County, and did not specially authorize a
levy of taxes to pay this judgment, but it declared that no more
taxes than were therein provided for should be levied.
On the 6th of December, 1877, a peremptory writ of mandamus was
"to and against the Board of County Commissioners of the County
of Leavenworth . . . commanding it to levy, on or before the first
Monday in the month of August next, and collect at the same time
and in the same manner that general taxes are levied and collected,
. . . a tax on all taxable property . . . in said county of
Leavenworth . . . sufficient in amount to pay the judgment,"
To reverse this judgment this writ of error has been sued
In United States v.
17 Wall. 604, it was decided that as a
mandamus was used "to compel the performance of a duty resting upon
the person to whom the writ is sent," if directed to a public
officer, it abated on his death or his retirement from office,
because it could not reach the office. That principle does not, as
we think, apply to this case. There, the officer proceeded against
was the Secretary of the Treasury of the United States, and the
writ was "aimed exclusively against him as a person." Here, the
writ is sent against the board of
Page 99 U. S. 627
county commissioners, a corporation created and organized for
the express purpose of performing the duty, among others, which the
relator seeks to have enforced. The alternative writ was directed
both to the board in its corporate capacity and to the individual
members by name, but the peremptory writ was ordered against the
corporation alone. As the corporation can only act through its
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 the contempt. Although the command is in form to the
board, it may be enforced against those through whom alone it can
be obeyed. One of the objects in creating such corporations,
capable of suing and being sued and having perpetual succession, is
that the very inconvenience which manifested itself in Boutwell's
case may be avoided. In this way the office can be reached and the
officer compelled to perform its duties, no matter what changes are
made in the agents by whom the officer acts. 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.
We think, therefore, that the peremptory writ was properly
directed to the board in its corporate capacity. In this way, the
power of the writ 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. If in the course of the proceedings it appears
that a part of the members have done all they could to obey the
writ, the court will take care that only those who are actually
guilty of disobedience are made to suffer for the wrong that is
done. Those who are members of the board at the time when the board
is required to act will be the parties to whom the court will look
for the performance of what is
Page 99 U. S. 628
demanded. As the corporation cannot die or retire from the
office it holds, the writ cannot abate as it did in Boutwell's
case. The decisions in the state courts in which this practice is
sustained are numerous. Maddox v. Graham,
2 Metc. (Ky.)
56; Soutter v. City of Madison,
15 Wis. 30; Pegram v.
Commissioners of Cleaveland County,
65 N.C. 114; People v.
19 Wend. (N.Y.) 56.
This disposes of the only question which has been argued here.
It is not contended that the law of 1876 presented any valid
objection to the levy of the tax. Von
Hoffman v. City of Quincy,
4 Wall. 535, and
Butz v. City of
8 Wall. 575, are decisive of this
The judgment of the circuit court will be affirmed, but as
during the pendency of this writ the time has gone by when by the
terms of the order for the peremptory writ the board was directed
to levy the tax in question, the cause will be remanded with
authority, if necessary, to so modify the order which has been
entered, in respect to the time for the levy and collection of the
tax, as to make the writ effective for the end to be accomplished,
and it is