Aureole. On the contrary, her helm was hard a-port. To say that the sheering of the Willkommen towards the Aureole was caused by suction does not necessarily contradict the testimony of the Aureole's officers as to the steering of that ship, although it makes necessary the inference that they were mistaken in their estimate of the distance between the two ships during the passing by the one of the other, and just before the collision. If the distance testified to by the captain, pilot, and other persons on board the Willkommen be correct, that is, that it was not more than 75 or 100 feet, and latterly not more than 50 or 60 feet, they were near enough to bring the smaller ship and slower ship, going at half speed, within the influence of any suction that might be created by the Aureole going at high speed through shallow water; and we think that it is established that such a thing is likely to occur under such circumstances.

It is claimed by the appellant that if the Willkommen had not slowed down, and afterwards stopped, but had kept at full speed on the course on which she was, the accident could not have happened; that by slowing down, and afterwards stopping the engines, she lost steerage way, and was beyond the control of her helm, against the set of the tide and wind. But the answer to this is that the Aureole was the overtaking ship, and, as such, had the burden placed upon her, by the laws and usages of navigation, of safely passing the slower ship; and, if she passed so close as to create a justifiable apprehension of peril on the part of those navigating the Willkommen, the latter ship would not be responsible for a mistaken judgment produced by such a situation. There is, however, nothing in the record to show that the slowing up of the Willkommen to half speed was an error, or transgressed the rules of navigation referred to. Under the circumstances, it seems to us, as it seemed to the pilot at the time, good judgment to slow up, so as to allow the Aureole the more quickly to pass; and the stopping of the engines just before the collision seems clearly justified by the situation in which the ships were. The pilot and captain of the Willkommen both say that it was necessary to slow and stop, in order to prevent a worse collision. Indeed, the judgment of the captain of the Aureole seems to have agreed in this respect with that of the pilot of the Willkommen, for the captain testifies to a conversation with Mr. Marshall, the pilot on the Willkommen, as follows:

"Q. What did you say? A. A very few words. Q. Tell us what they were. A. My words were these: "Tom, why did you not slow that ship down when we were passing her?' He said: 'I did; I went half speed. I went slow. stopped her, and I went back on her.' I said: 'How do you account for this collision?' 'Suction.' I said: 'Impossible! I said no more."

Another fact which seems conclusive as to the distance between the two ships being much less than that testified to by those on board the Aureole is that, with the stern of the Aureole abreast the bridge of the Willkommen, or between that and the fore rigging, it would have been impossible for the Willkommen, going at hai speed, to have overtaken the Aureole, going at full speed, so as to

strike her an angling blow at a point 35 feet from the taffrail, if 300 feet or more had separated them. And to this effect is the testimony of the pilot of the Willkommen:

"Q. If your vessel's bow was opposite the bridge of the Aurele, and you were going full speed and the Aureole full speed, and you were 300 feet away from each other, would it have been possible for you to have touched her? A. We never would have caught her. Q. You could not have caught her, even if you had changed your helm to go that way? A. No, sir; because, even taking us going half speed, we were not going over four miles an hour, -between four and five,-and the Aureole was going ten. She was going just twice as fast. We never could have caught her at that distance apart." The direct testimony of no witness contradicts this opinion of the pilot of the Willkommen.

An attempt was made by the respondent to throw doubt upon, if not to deny, the existence of such a force as suction when ships are passing each other at full speed. The engineer of the Aureole testified that he had passed ships in the Seine much closer than he had passed the Willkommen, without any danger, and never knew one of them to sheer. He did not say, however, whether he had passed them going in the same direction, nor did he speak as to the depth of the water. The captain says that they were not passing close enough for suction to have had any influence on the Willkommen if she had kept her proper course. His statement seems to recognize, however, the possibility of such a thing as suction. Pilot Maull, of the Aureole, says he never had any experience that would enable him to form an opinion as to whether there was any such influence between passing vessels as suction, although he admits that he has heard of such a thing. Taking as true the facts testified to as to the steering and management of the ships while the Aureole was passing the Willkommen, and the preponderating weight of the evidence that the ships were much nearer than 300 feet, some other force or influence than the steering must be resorted to, to account for the sheering of the Willkommen towards the Aureole. Pilot Maul says that this force or influence is what he calls "suction," produced by the passing of the Aureole at high speed through shallow water close enough to the Willkommen to produce the effect. That such a force can be created, under the circumstances which we think probably existed in this case, seems to have been generally, if not universally, recognized among those experienced in the navigation of ships in the shallow waters of rivers and bays, and has been accepted as sufficiently proved in a number of adjudicated cases. The strength of this force undoubtedly will differ according to the locality, and is largely affected by the depth of water and the width of the channel through which the ships are passing. It seems to be established that this power or influence called suction is much greater and more dangerous when one vessel is passing another going in the same direction than when they are going in opposite directions. The Alexander Folsom, 3 C. Č. A. 165, 52 Fed. 403; The City of Cleveland (D. C.) 56 Fed. 729. In the latter case the court says:

"The suction of two vessels passing each other in different directions is not very powerful. It is too short to have any particular effect upon the

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 (Ď. 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, therefre, the testi

mony 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 helm, as charged 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 neglect 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.)

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No. 991.

1. VILLAGES-TAX TO PAY INTEREST ON INDEBTEDNESS-OHIO 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 COMPpel 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 view 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 br ught 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, had ceased 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, 1900, 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 forbidden 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 governmental 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 council, 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 levy on the balance of said judgment, was duly excepted to.