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action of the two vessels unless one is much larger than the other; whereas, if they are going in the same direction, and passing near each other, it has a more powerful effect to deflect the weaker vessel from her course."
The General William McCandless, 6 Ben. 223, 226, Fed. Cas. No. 5,321 ; The Mariel (D. C.) 32 Fed. 103.
The case of The City of Brockton (D. C.) 37 Fed. 897, is, on its facts, much like the present case. That was a case in which the Brockton, being the faster ship, was following the J. C. Hartt in the channel near Sandy Hook, and, overtaking her, attempted to pass her on the starboard side. The Brockton averred that she was passing at a safe distance, 250 feet away from the Hartt, but that, after her pilot house had passed the bow of the Hartt, the Hartt changed her course, which caused her bow to collide with the stern of the Brockton. The Hartt, on the other hand, averred that the Brockton was passing too close for safety, and several witnesses on board of her at the time testified that the ships were not more than 75 or 100 feet apart. The court thought this the more correct estimate of the distance between them. The court, after referring to the testimony of the sudden lurch or sheer by the Hartt towards the Brockton, says:
"Such language does not describe a change of course effected by the rudder, but points strongly to the presence of some other force outside of the Hartt, to which her change of course should be attributed. And such a force was present, namely, the force of currents created in the water by the powerful action of the Brockton's wheels driving so large a vessel through the water at high speed. Currents of water more or less strong are necessarily created by a vessel like the Brockton moving at high speed. They will differ according to the locality, and are largely affected, no doubt, by the depth of water. There is evidence that their power is increased when two vessels of about the same speed are passing each other. What the depth of water or the configuration of the bottom was at the place where the Brockton's wheels approached the bow of the Hartt is not proved. But the extent and power of the current actually created by the Brockton seems to me to be shown by what the Hartt did as the wheels of the Brockton neared her bow.
As it seems to me, theref re, the testimony given by the witnesses called in behalf of the Brockton warrants the conclusion that the change of course on the part of the Hartt testified to by Mr. Adams and Mr. Choate, and to which they attribute the collision, was not caused by the fault of the Hartt in porting her belm, as cha rged in the Brockton's pleadings, but was caused by the fault of the Brockton, charged in the Hartt's pleadings, namely, either by her sheering across the Hartt's bows, or that she did not come up to the starboard side of the Hartt at a sufficient distance from the Hartt to pass in safety.'”
This and the other cases above referred to, judicially recognizing the existence of the force called "suction," and its power, under favoring circumstances, to draw one vessel towards another, cannot be disregarded by this court in considering the denial on the part of the appellant that such a force can exist or be operative,-a denial for which there is no support, except in the testimony of the captain, pilot, and engineer of the Aureole that they had had no experience of such a force.
We are of opinion in this case that the sheering of the Willkommen towards the Aureole just before the collision was not caused by the steering of the Willkommen; for the evidence is clear that her helm was not a-starboard, except in the temporary adjustment thereof in steering a straight course, while the Aureole was passing, and was put hard a-port some time before the collision. Such being the case, we are of opinion, also, that the Aureole was passing the Willkommen close enough, under the circumstances of the depth of the water and the set of the tide and wind, to bring the latter vessel within the influence of a force or current known as "suction.” In other words, that the Aureole failed in her duty, as the overtaking vessel, to pass the Willkommen at a safe distance. As such overtaking vessel, the burden was upon her to show that the collision was occasioned by no fault on her part, but by some fault or negiect of duty on the part of the Willkommen. Such fault on the part of the Willkommen, in her situation, must have been through so steering with a starboard helm as to turn the vessel from her straight and parallel course towards the Aureole. Of this there is no proof whatever, and to the contrary we have the positive testimony of those on board the Willkommen. As we have already said, we think the weight of the testimony establishes the fact that a suction was produced by the rapid passing of the Aureole too close to the Willkommen, in water that was shallow, when compared with her draught of 25 feet.
The decree of the court below is therefore affirmed.
(113 Fed. 232.)
VILLAGE OF KENT et al. v. UNITED STATES ex rel. DANA.
(Circuit Court of Appeals, Sixth Circuit. January 7, 1902.)
1. VILLAGES-TAX TO PAY INTEREST ON INDEBTEDNESS-OH10 STATUTE.
Rev. St. Ohio, § 2683, provides that a village council “may levy taxes annually,
[subdivision 22] to pay interest on the public debt of the corporation and to provide a sinking fund therefor a sum sufficient to satisfy the interest as it accrues annually, to be applied to no other purpose.” Subdivision 24 provides that "the council shall determine the amount to be levied for each of the purposes herein specified,” and section 2689a limits the total levy to eight mills. Held, that the word “may,” as used in section 2683, must be read “shall,” so far as it relates to subdivision 22, and that the council had no discretion, as against a holder of valid bonds of the village, to refuse to levy the amount required to pay the annual interest thereon, not exceeding eight mills, nor to divert any part of such amount to other purposes, notwithstanding the fact that the remainder of the levy might be insufficient
to pay the current municipal expenses of the village. 2. SAME-MANDAMUS TO COMPEL PAYMENT OF INTEREST, DEFENSES.
It is no defense to an action for a writ of mandamus to compel a village to apply so much of such levy as is necessary to pay a judgment recovered against it on interest coupons that such application would leave the village without sufficient funds for ordinary municipal purposes, in riew of Rev. St. Ohio, $ 2687, which authorizes the levy of an unlimited tax by the village for any authorized purpose by a vote of its electors at a special election which the council is empowered to call.1
1 Mandamus to enforce payment of judgment against municipality, see note to Holt Co. v. National Life Ins. Co., 25 C. C. A. 475.
In Error to the Circuit Court of the United States for the Northern District of Ohio.
For opinion below, see 107 Fed. 190. This is an action in mandamus. It was brught in the circuit court in November, 1900, by the filing of a petition on the relation of Edward Dana against the village of Kent, Ohio, and its council, clerk, and treasurer. The petition alleged that Dana had recovered a judgment in the circuit court against the village of Kent on certain interest coupons maturing in 1896 and 1897, representing certain installments of interest on 25 b nds, of $1,000 each, issued by the village in 1892, and containing a recital that their purpose was to refund and extend the time of payment of certain general fund bonds theretofore issued, which, from its limits of taxation, the village could not pay at maturity. It appears that there was a sum of little less than $2,500 in the hands of the treasurer of the village, which had been levied for the purpose of paying the interest on the said bonds in each of the years 1892 to 1895, inclusive. An alternative writ of mandamus having been issued, the village, in its answer, set up that said sum of money was on hand, levied and collected as aforesaid, under the supposed authority of the act of April 17, 1891, of the legislature of Ohio, authorizing the village council of any village which at any federal census may have a populati n of not less than 3,309, nor greater than 3,320, to borrow money and issue bonds for the purpose of making certain improvements; that the village authorities, on discovering said act to be unconstitutional and invalid, bad (eased to make any extra levies for the purpose of paying the interest thereon; that said fund was ready to be paid as the court might order. Said sum of little less than $2,500 was ordered to be paid over to the relator, and no controversy is now made about the same. As to making provision for the payment of such part of the judgment as might remain unsatisfied after applying the said fund, the answer alleged, in substance, that. aside from said interest fund, there are no funds in the treasury legally applicable to the payment of said judgment; that Kent is, and for more than 10 years last past has been, a village of the first class. limited by the law of Ohio to a maximum levy for village purposes of eight mills on the dollar; that no vote for increasing the same in accordance with the law has ever been had; that on or before the first Monday in June, 120, the tax of eight mills was duly levied for that year, and its distribution provided for according to law among the several departments of the village in proportion to their needs, diversion thereof being f rbidden by law; that the amount which would accrue therefrom in addition to all other financial resources of the village would fall short of the amount required for the pr per maintenance and ordinary and current expenses necessary for carrying on the government of the village; that the revenue of the village arising from such eight-mill levy for the year 1901, the revenue of the village for 1900, and from any and every other source of revenue, will be insufficient to defray the ordinary, current, and necessary governmental expenses of said village for said period; and that no part of said revenues can be diverted for the payment of plaintiff's judgment without preventing the village from meeting its ordinary, current, and necessary governinental expenses. This answer was demurred to. The court sustained the demurrer, and, no further pleading being filed, a peremptory writ of mandamus was issued, requiring the payment to said Dana of said interest fund of little less than $2,500, and the issue of a further peremptory writ requiring the c uncil, at the time of making the annual levy for 1901, to provide in said levy for such amount as would be necessary to pay the balance of the judgment, and to then and there provide for the distribution and appropriation of said tax to the payment of such balance, and to proceed without undue delay to cause said tax to be collected according to law, and the proceeds to be applied to the payment of the balance of said judgment. No objection or exception was taken to the application of said fund on hand. That part of the order relating to the levy and applicati n of the tax for the year 1901, and requiring the payment of the proceeds of such lery on the balance of said judgment, was duly excepted to.
W. E. Cushing, for plaintiffs in error.
Before LURTON and DAY, Circuit Judges, and WANTY, Dis-trict Judge.
DAY, Circuit Judge, after making the foregoing statement, delivered the opinion of the court.
The principles which shall control in determining the right of a creditor to have a mandamus against a municipal corporation for the purpose of requiring a tax for the payment of a judgment were fully discussed in a recent case before this court. City of Cleveland v. U. S. (decided at this term) Il Fed. 341. The opinion of Judge Lurton in that case is so 'full and comprehensive that we are required to do little more now than to apply the principles therein enunciated to the facts of the case in hand. Judge Lurton said:
"It must, at the outset, be conceded that a mandamus cannot be awarded to compel the mayor and council of the plaintiff in error to levy any tax which they were not authorized to levy by the law of the state from which they derive their powers. The office of such a writ is not to create new duties, but to compel the discharge of those already imposed by the municipal law of the state. In other words, the power to levy the tax which the relator seeks to compel must exist in some legislati n, or be plainly implied from some local sta cr charter." Carrol Co. Sup’rs v. U. S., 18. Wall. 71, 77, 21 L. Ed. 771; U. S. v. Macon Co., 99 U. S. 582, 591, 25 L. Ed. 331.
Our first inquiry, therefore, is, do the statutes of Ohio confer upon the village of Kent power to levy a tax as the relator seeks to compel it to do for the satisfaction of his judgment? The Ohio statutes necessary to be considered in this connection are sections 26822684, 2689a, Rev. St. These sections are as follows:
“Sec. 2682. Rates of Taxation in Cities and Villages for General Purposes. The council of a city or village shall have pwer to levy, annually, for the general purposes of the corporation, such amount of taxes, on each dollar of valuation of taxable property in the corp ration on the tax list, as may be determined upon by it, not exceeding the following rates: In a village, one-half of one mill. In a city of the first or second grade of the second class, one mill. In a city of the third grade, or third grade a, or fourth grade of the second class, two mills. In a city of the first grade of the first class, four and one-half mills. In a city of the second grade If the first class, two mills. In a city of the third grade of the first class, two mills.
“Sec. 2683. Levies for Special Purposes. In addition to the taxes specified in the last section, the council in each city and village may levy taxes, annually, for any improvement authorized by this title, and for the following purposes: (1) For the real estate and right of way for any improvement authorized by this title. (2) For sanitary and street cleaning purposes, and for street improvements and repairs. And in cities of the second grade of the first class, such part of the funds raised for any of these purposes as the council deems necessary shall, upon the recommendation of the board of improvements, be appropriated monthly for keeping in repair the paved streets of such cities. (3) For improving highways leading into the corporation. (1) For wharves and landings on navigable lakes and rivers, and keeping the same in repair. (5) For constructing levees and embankments, and keeping the same in repair. (6) For constructing and maintaining bridges. (7) For improving any water course passing through the corporation. (8) For the erection and maintenance of infirmaries, and support of the out-door poor. (9) For the erection and maintenance of workhouses. (10) For erecting, enlarging, or improving corporation prisons. (11) For the erection of houses of refuge and correction, and for the expense of maintaining and administering the same, above the receipts arising from the labur of persons confined therein, such sum as may be necessary to meet the same. (12) For the erection and repair of market houses, and for lighting, watching, and cleaning the same. (13) For erecting, enlarging and improving hospitals. (14) For erecting, enlarging, and improving halls and public offices. (15) For the erection of school buildings, and such rate as may be prescribed by law for scho. Is and schoolhouse purposes. (16) For the erection of buildings required by the fire department, the construction of reservoirs, the purchase of steam or other fire engines, and other apparatus, and for keeping the same in repair, and for the support of the fire department. (17) For erecting, enlarging, and improving water wirks, and for supplying the corporation with water. (18) For erecting, enlarging, and improving gasworks, and for lighting the corporation. (19) For grounds for cemeteries and park purposes, inclosing, improving, embellishing, enlarging and keeping the same in repair. (20) For the construction and repair of sewers, drains, and ditches; and where the corporation is divided into sewer districts the levy shall be by such districts. (21) For the payment of the marshal and police authorized by this title. (22) To pay the interest on the public debt of the corporation and to provide a sinking fund therefor, a sum sufficient to satisfy the interest as it accrues annually, to be applied to no other purpose. (23) For the purpose of keeping and maintaining a free public library and reading room; but no tax shall be levied for this purpose unless a suitable lot and building therefor, supplied with library furniture and fixtures, shall first be donated or leased to, or rented by the corp ration. (24) The council shall determine the amount to be levied for each of the purposes herein specified, and such part thereof must be placed on the tax list and collected annually, as it shall by ordinance prescribe.
2 19 C. C. A. 383.
"Sec. 2684. Construction of Limitations. The limitations contained in section twenty-six hundred and eighty-two shall not be construed to prohibit special assessments for improvements provided for by this title, nor the levy of a tax to raise means for the payment of the principal and interest of the debts of the corporation, nor of any tax authorized by law for special purposes."
Section 2689a contains a general provision as to villages of the first class in Ohio,—that the aggregate of all taxes levied or ordered by such village, including the levy for general purposes above the tax for county and state purposes, and excluding the tax for school and school-house purposes, shall not exceed in any one year eight mills.
The plain reading of this section of limitation, as well as the construction put upon it by the supreme court of Ohio, makes it applicable to all village taxes, general and special, and requires that they shall be kept within the limit of eight mills on each dollar of the value of the property as valued for taxation on the county tax list. State v. Humphrey, 25 Ohio St. 520; State v. Strader, 25 Ohio St. 527; Cummings v. Fitch, 40 Ohio St. 56; City of Cleveland v. Heisley, 41 Ohio St. 670. The relator in this case does not seek to require a levy exceeding eight mills for municipal purposes. The contention is that out of the tax levied and collected within this limitation an amount sufficient to pay the judgment of the relator for interest upon the bonds must first be paid. These bonds were issued under section 2701 of the Revised Statutes, authorizing the issue of bonds to extend the time of payment of indebtedness which, from its limits of taxation, the corporation is unable to pay at ma