is no longer in existence as a matter of fact. It is true, that the acts of 1861, abrogating the district, and creating two separate districts, one for each parish, did not in terms abolish the old corporation, but reserved to it the power to levy taxes in order to meet its outstanding indebtedness. But the creation of the new districts, providing (as was done) for the election of new and separate commissioners in the parish of Carroll, the placing of the levees in the parish of Madison under the charge of the police jury, and substituting an entire new system of levee management in the parishes, superseded all the functions of the old board and all provisions for their continuance by election, except so far as may have been saved by express reservation. Nothing, however, was thus saved, except their power to assess taxes to meet their outstanding indebtedness. And, in fact, no elections for members of the board have ever been held since that time. The term of office of the commissioners expired in November, 1862, and no provision was made in the laws constituting the board, that the members should hold over until the election of their successors. It is true, a general act had been passed in 1856, declaring that all State and parish officers should, after the expiration of their term of service, continue to perform the duties of their office until their successors should be inducted into office. But the members of this board were neither State nor parish officers, and the laws for electing others in their stead had ceased to have operation. And although, in ordinary cases, where an election has been omitted, officers may continue to act as officers de facto beyond their regular term (though not compellable to do so), and their acts will bind the corporation which they represent; yet, where, as in this case, no further provision is made for any further election, and the functions of the corporation have been abrogated or superseded, we do not think that any implied power to continue in office beyond the prescribed period exists. Our attention, however, is called to the act passed by the provisional legislature in 1867 (Laws 1867, pp. 264-272), by which the corporation is assumed to be in existence, and is authorized to make and issue certain bonds; and for that purpose it is declared (sect. 10), that "the Board of Levee Commissioners shall continue in office, with the power of filling vacancies in

said board, until their successors shall be duly elected and qualified according to law; and all powers granted to said Board of Levee Commissioners by any of the acts aforesaid, or by any other acts, shall and may be exercised by the members of the board now in office and any members appointed or elected as above described." This provision is evidently based upon a false suggestion. It supposes that "successors could be "elected and qualified," when there was no law then in existence for any such purpose. A different system was in operation, and had taken the place of that which provided for the election of these commissioners. The act also declares that the Board of Levee Commissioners shall continue in office; taking for granted that they were in office, when, in fact, as we have seen, they were not. Furthermore, this act was one of the acts expressly excepted from the operation of the one hundred and forty-ninth article of the constitution of 1868, which validated all laws passed since the ordinance of secession in 1861. This express exception is undoubtedly equivalent to a repeal of the act.

Our conclusion from the whole case, therefore, is, that the corporation in question no longer exists, and that no mandamus can be issued to it or to the surviving persons who were formerly members of the board.

The prayer for a mandamus against the police juries of the parishes of Madison and Carroll clearly cannot be granted. Those bodies never had any power to assess the levee tax in question. There is no law authorizing them to do so. They do not act in concert, which they would have to do, in order to assess a uniform tax on the whole district; and there is no privity of duty, interest, or succession between them and the extinct board.

The remaining prayer, for an order directing the marshal to assess the tax, is equally inadmissible. It is true, that, in the case of The Supervisors of Lee County v. Rogers, 7 Wall. 175, we held that the Circuit Court acting in that case, after having issued a mandamus to the supervisors of the county, commanding them to levy a tax, and they having refused to obey the writ, was authorized, under the Code of Iowa, which provided for such a proceeding, to issue a writ to the marshal commanding

him to levy and collect the taxes required. But we have never gone beyond this case, which depended on the special law referred to. The marshal is the executive officer of the court, and can only execute its process; and the court, without some such special authority as that contained in the Iowa Code, cannot enforce its judgments for the recovery of a debt in any other way than by seizing and selling the property of the judgment debtor, or (where imprisonment for debt is authorized) by seizing and detaining his person. Where the debtor is a corporation, it cannot seize the property of its members. This it would do if it should issue a writ to the marshal commanding him to levy a tax upon the inhabitants of a municipal corporation, or upon their private property. The court has no more authority, in point of law, to seize the property of citizens for the debt of the corporation in which they reside (except in some of the Eastern States, where a different system prevails) than it has to seize the property of another corporation. Its power to issue a mandamus to compel municipal officers to perform their duty of levying a tax is a distinct power, which extends to all ministerial acts which officers are legally bound and refuse to perform. In the recent case of Rees v. The City of Watertown, 19 Wall. 107, we decided that the court has no general power to commission the marshal to levy taxes for the purpose of satisfying of satisfying a judgment, and we refer to that case for a more full explanation of our views on this subject.

Much reliance is placed by the counsel of the petitioner on the fact that the taxes directed to be imposed by the acts of 1858 and 1859 were made a first lien and privilege upon the property liable thereto. We do not see how this can affect the present application. Liens for taxes are very generally created throughout the country; but it is never supposed that the public creditors, to whom the money raised by tax is to be paid, have the benefit of such lien. It is created for the benefit of the public authorities, to enable them with greater certainty and facility to collect the taxes, without the embarrassment of other pretended claims against the property taxed.

The truth is, that a party situated like the present petitioner is forced to rely on the public faith of the legislature to supply him a proper remedy. The ordinary means of legal redress

have failed by the lapse of time and the operation of unavoidable contingencies. It is to be presumed that the legislature will do what is equitable and just; and in this case legislative action seems to be absolutely requisite.

Judgment affirmed.

BROUGHTON v. PENSACOLA.

A change in the charter of a municipal corporation, in whole or part, by an amendment of its provisions, or the substitution of a new charter in place of the old one, embracing substantially the same corporators and the same territory, will not be deemed, in the absence of express legislative declaration otherwise, to affect the identity of the corporation, or to relieve it from its previous liabilities, although different powers are possessed under the amended or new charter, and different officers administer its affairs.

APPEAL from the Circuit Court of the United States for the Northern District of Florida.

Argued by Mr. P. Phillips and Mr. Thomas G. Jones for the appellant.

Submitted on printed arguments by Mr. C. C. Yonge for the appellee.

MR. JUSTICE FIELD delivered the opinion of the court.

By an act passed on the 2d of March, 1839, by the then Territory, now State, of Florida, the city of Pensacola, at the time a pre-existing corporation, was rechartered, and its powers were vested in a mayor and board of aldermen, who were, at all times, to continue "to act in their respective functions" until the election and qualification of their successors in office. Among the powers conferred by the charter was the power to borrow money, not exceeding $5,000 a year, and to levy taxes and provide for their collection, with a limitation of the amount to be levied upon real estate to three-fourths of one per cent.

In December, 1850, by an amendatory act, these limitations. were repealed, and a larger loan and a greater rate of taxation upon real estate were allowed. By a further amendatory act, passed on the 3d of January, 1853, the mayor and aldermen, with the consent of a majority of the corporation, were author

ized to subscribe, in the name of the city, any amount of money which they might deem necessary to any railroad leading from the city; and, for the purpose of procuring the amount of the subscription, were empowered to borrow the same, and impose a tax upon real estate within its limits, not exceeding two per cent on the assessed value of the property. By another act, passed in the same month, the Alabama and Florida Railroad Company was chartered to construct a railroad from some point on Pensacola Bay (the city being the point afterwards selected) northward to the boundary line of Florida and Alabama, and there to connect with another line of road to be constructed from the city of Montgomery, Ala.

Under the act of Jan. 3, 1853, the city of Pensacola subscribed $250,000 to the capital stock of this railroad company, and in payment of the same executed and delivered to the company five hundred bonds of $500 each, payable twenty years after date, with interest at the rate of seven per cent per annum, payable semi-annually on the first days of January and July, at such bank in the city of New York as the treasurer might direct, on the surrender of the coupons for such interest attached to the bonds.

The plaintiff is the holder of sixteen hundred and ninety of these coupons, now past due, and alleges that the city has never made any provision for their payment at any bank in the city of New York, or at any other place; that, until about the 1st of January, 1871, the city received the coupons in payment of taxes, although the taxes assessed were never sufficient to absorb the coupons as they matured, but that since that time. the city has refused, and still refuses, to recognize its obligation to pay them. Several judgments have been recovered by other parties upon coupons of the same kind against the city; but executions issued thereon have been returned wholly unsatisfied, because the city possessed no property out of which they could be made.

The constitution of Florida, adopted in 1868, provided that the legislature should "establish a uniform system of county, township, and municipal government.” In pursuance of this requirement, the legislature, in 1868 and 1869, passed acts "to provide for the incorporation of cities and towns, and to estab