to be a valid act, although the claim had been | the city of Guthrie to pay claims which it rejected in a suit brought to obtain its pay- never agreed to pay either as a corporation ment, and a previous legislature had passed de jure or de facto. But the cases above an act directing the claim to be submitted to cited were cases where there was no legal the electors at a town meeting, and declaring obligation to pay the claims, and the acts in their decision should be final and conclusive, effect compelled their payment. The city and upon such submission the claim had here was under a plain moral duty to provide been rejected. It was said that the legisla- payment for honest and proper claims of this ture of the state had power to levy a tax nature, and it seems as if it ought to be enupon the taxable property of the town and tirely ready to pay them. If any claims [537]appropriate the same to the payment of the were without merit or fraudulent, there was claim made by an individual against the opportunity to show such fact before the town even though the claim, to satisfy which commission and also before the district the tax was levied, was not recoverable by court upon the hearing provided for by the action against the town; and it was held act. The defendants in error say that there that the state could recognize claims founded is by the act no opportunity provided for in equity and justice in the larger sense of any investigation of these claims by the disthese terms or in gratitude or charity. trict court after the commission has reported the claims to that court, because the act does not give the court power to make any investigation for itself. We do not see that this is material even if true. We are of opinion, however, that the district court has such power. The statute provides in section 4 that the commission shall make a report to the district court, showing the names of the claimants and the amounts allowed by the commission, and also all the claims and In Read v. Plattsmouth, 107 U. S. 568 [27: the names of persons and amounts disallowed 414], the words of Mr. Justice Field in New by them, and this report the statute directs Orleans v. Clark, supra, were quoted with shall be made "for the approval or disapapproval. In the exercise of this jurisdic-proval of the district court." The report tion over municipal corporations by the state need contain nothing but what has just been or by the territorial legislature, no constitu- stated, and it is obvious that on such a retional principle is violated. It is a juris- port alone the district court would be entirediction which has been customarily exer-ly without means of determining whether to cised ever since the foundation of the govern-approve or disapprove the decision of the ment, and is based upon the power of the state as sovereign to itself recognize or to compel any of its political subdivisions to recognize those obligations which, while not cognizable in any court of law, are yet based upon considerations so thoroughly equitable and moral as to deserve and compel legislative recognition. It is not necessary to say in this case that the legislature had the power to donate the funds of the municipality for purposes of charity alone. The facts show plain moral grounds for the act, a consideration existing in the benefits received and enjoyed by the city or by its predecessors from whom it took such benefits. The legislature might have decided the facts for itself, but instead of that it appointed this tribunal. commission in any particular claim. But as the report of the commission is to be made to the district court for its approval or disapproval, it follows as of necessity that the court has power to investigate for itself the facts upon which the claims were founded in order that it may intelligently *approve or[539] disapprove of the decisions of the commisThere is no force to the objection that in sion. It is not to be supposed that the proascertaining the facts provision must be vision in the act for making a report to the made for a trial by jury, if demanded, or district court and for its approval or disapelse that the Seventh Amendment to the Con-proval was a purely formal matter, and that stitution of the United States is violated, the court might arbitrarily, unreasonably, or which provides that "in suits at common law, improperly approve or disapprove any claim. where the value in controversy shall exceed If not, then the court must have power in the twenty dollars, the right of trial by jury necessary discharge of its duty to approve or shall be preserved." disapprove, to ascertain the facts necessary to an intelligent discharge of that duty. These facts may be found by the court without a jury. As the statute does not provide for a report of the facts found by the commission upon which it based the allowance or disallowance of the claims or any of them, the court must itself find them in order to approve or disapprove. This act does not infringe upon that amendment. The proceeding under it is not in the nature of a suit at common law, and the cases already cited show the power of the legislature to provide for payment by taxation of claims of the nature of those involved herein. The cases of Bank of Hamilton v. Dudley's [538]Lessce, 2 Pet. 492 [7: 496], *American Publishing Company v. Fisher, 166 U. S. 464 [41: 1079], and Salt Lake City v. Tucker, 166 U. S. 707 [41: 1172], were cases of suits at common law, and Thompson v. Utah, 170 U. S. 343 [42: 1061], was a criminal case. Those cases therefore do not apply here. It is also stated that these claims were not incurred by officers of either a de jure or de facto government, and that hence there was no power in the legislature to compel Although the act makes no provision for notice to the parties interested as to the time or manner in which the district court will proceed to investigate the character of the claims, yet in the absence of any such provision the court having the duty to investigate would have power to regulate the time of the hearing and provide for reasonable notice by its rules, so as to prevent surprise. This, in substance, was held in United States Ritchie, 17 How. 525, 533 [15: 236, 2381, V. where a similar lack of provision for notice in a certain section of the act was referred to and the power of the court to make rules in regard to it was asserted. Whether the act is to be construed as making the decision of the district court upon the merits of any claim final, it is not now necessary to decide. The district court has refused to exercise any jurisdiction under the net, because it decided the act was invalid. Upon such a judgment we think a writ of error was properly sued out from the territorial supreme court under the ninth section of the act (26 Stat. at L. 85), and under the same section a writ of error from this court to the latter court may properly issue. The other questions set forth in the brief of counsel for the defendant in error, relating to parties and matters of procedure, we have examined, and regard them as without merit. We are of opinion that the district court erred in disinissing these proceedings on the 0] round of the invalidity of the *act under which they were taken, and that the supreme court of the territory erred in affirming that judgment of dismissal, and we therefore reverse the judgment of the latter court and remand the case with directions to that court to reverse the judgment of the district court, with directions to the district court to proceed to a hearing of the claims upon their merits. So ordered. Mr. Justice Harlan dissented. THE CHATTAHOOCHEE. (See S. C. Reporter's ed. 540-555.) When schooner is liable for excessive speed in a collision-damages when both parties are in fault. schooner. amount from one half the damages suffered [No. 27.] Argued May 3, 4, 1898. Ordered for Reargu- N WRIT OF CERTIORARI to the United States Circuit Court of Appeals for the First Circuit to review a decree of that court affirming the decree of the District Court of the United States for the District of Massachusetts awarding to the libellants the value of the cargo as bailees for its owners, and one half of the amount of the loss of the vessel to said libellants as owners thereof, and ordering that the steamship might recoup from the last amount one half of the total damages to the cargo, in a libel for a colli. sion between the schooner Golden Rule and the steamship Chattahoochee, the libel being The Golden Rule was a topsail schooner She left Boston in the 1. A schooner is liable for excessive speed in a collision with a steamer, when she was sailing at a speed of 7 miles per hour, through a fog, in waters where other vessels were frequently met, and where her foghorn was heard by the steamer but once, or possibly twice, The Chattahoochee was an iron screw when, if the vessels had been proceeding at steamship of 1,887 tons burden, 300 feet in the speed required by law, their signals would have been exchanged so many times that the length, and running on a line between Boslocality and course of each would have been ton and Savannah. clearly made known to the other, and suffi- afternoon of the 19th, and when off Cape cient time would have been given to the Cod, her master, owing to the foggy weather, steamer to take proper steps to avoid the decided to take the outside passage by Nantucket, instead of her regular course through 2. In a libel for a collision between a schooner Vineyard sound. The outside course was and a steamship, which resulted in a total much clearer of vessels. Before the collision loss of the schooner with all her cargo, while the steamship was eighteen miles off the the steamship was uninjured, in which the South Shoal Lightship, on a course southcourt decides that both vessels were in fault west half west, proceeding at her full speed and that the damages should be divided, the libellants, as bailees for the owners of the of from ten to twelve knots an hour, and cargo of the schooner, are entitled to recover blowing her whistle at the statutory interof the steamship the entire value of the cargo, vals after 12:30 o'clock. The *master and the[542] but the latter may recoup one half of this first officer with the quartermaster were in The docket title of this case is Abram W. the pilot-house, and a man was on the lookHendry et al., Appts., v. Ocean Steamship Com-out forward. U. S., Book 43. pany. 51 From the above statement it will be seen that the two vessels were approaching upon The officers of the schooner heard the sion. Messrs. Eugene P. Carver and Edward E. Blodgett, for Abram W. Hendry et al., appellants: The faults of the Chattahoochee other than those found by the court are: Changing her course under a port helm without knowing the location of the sailing vessel whose fog signal she heard. The City of New York, 147 U. S. 72, 37 L. cd. 84. Another cause of the collision was the fact that the steamship did not stop and did not reverse in time. The Edgar F. Luckenbach, 8 U. S. App. 9, 50 Fed. Rep. 129, 1 C. C. A. 489; The Midland, 48 Fed. Rep. 331; Bunge v. The Utopia, The schooner Golden Tule was without fault. What is a moderate rate of speed for a sailing vessel in a fog in the place where the collision took place? The master and lookout of the steamship heard the fog signal of the schooner about two minutes before the collision, apparently a point off their port bow. The order was immediately given and obeyed to stop and aft-1 Fed. Rep. 892. erwards to reverse, and the wheel was put hard aport in order to locate the sound. When they first saw the sails of the schooner they bore one and one-half points on the port bow of the steamer. During this time the helm of the steamer was hard aport. Upon seeing the schooner, the steamship, which was then swinging to starboard under In the case of The Nacoochee, 137 U. S. her port helm, ordered her engines full speed 331, 34 L. ed. 688, where the collision was ahead for the purpose of clearing the schoon-off Cape May, the schooner, with all sail set, er. The schooner kept her course and the vessels came together at an angle of four points, the steamship striking the schooner forward of the foremast on the starboard The district court was of opinion that both Damages were awarded to the libellants, as bailees for the owners of the cargo, to the amount of $17,215.17, and to the libellants, as owners of the vessel and for the value of certain personal effects of the crew, in one half the total amount of their loss, namely, $9,205.45; and it was further ordered that the owners of the steamship might recoup from the said amount of $9,205.45 the sum [543]of $8,607.58, being one half of the *total damages to the cargo. An execution was ordered against the claimants of the steamship and its stipulators for the sum of $597.87, this being the difference between half the value of the schooner and the personal effects of the crew and half the value of the cargo for which the schooner was thus held responsi ble. Upon appeal to the circuit court of appeals, that court affirmed the decree of the district court upon the merits; but modified the same with reference to the distribution between the owners and master of the Golden Rule on the one side and her mate and crew on the other, finding that, as neither the mate nor her crew were responsible for any fault in her navigation, the several sums awarded the mate and crew should have priority over the amounts awarded the owners and master. 33 U. S. App. 510. Whereupon an application was made to this court by the libellants for a writ of certiorari, which was granted. The N. Strong [1892] P. 105; The Elysia, 4 Asp. M. L. Cas. 540. was going 4 knots per hour, and the steam- ed. 862; The Beta, L. R. 9 Prob. Div. 134; But in cases of this kind much depends upon the density of the fog, and some things must be left to the judgment and discretion of the master. The Umbria, 166 U. S. 404, 41 L. ed. 1053. The speed of the schooner Golden Rule did not contribute to the collision. The Martello, 39 Fed. Rep. 509; The City of New York, 147 U. S. 72, 37 L. ed. 84; The Ludvig Holberg, 157 U. S. 60, 39 L. ed. 620; The Comet, 9 Blatchf. 323; The John King, 1 U. S. App. 64, 49 Fed. Rep. 469, 1 C. C. À. 319. The burden of proof is upon each vessel to establish fault on the part of the other. The Victory, 168 U. S. 410, 42 L. ed. 519. The fault of the schooner was slight in comparison with that of the steamship. Damages should be apportioned between vessels according to the degrees of fault. 12 Law Quarterly Review, 260; 13 Law Quarterly Review, 17, 241. The rule of equal division of damages where both vessels are to blame has been firmly established in England. Marsden, Maritime Collision, 3d ed. 154; The Milan, Lush. 388; De Vaux v. Salvador, 4 Ad. & El. 420; The Stoomvaart Maatschappy Nederland v. Peninsular & O. Steam Nav. Co. L. R. 7 App. Cas. 795. The United States courts sitting in admiralty have always divided the loss between both vessels in cases of mutual fault. The Max Morris, 137 U. S. 1, 34 L. ed. 586; The Mary Ida, 20 Fed. Rep. 741; The Victory, 25 U. S. App. 271, 68 Fed. Rep. 395, 15 C. C. A. 490. The rule of damages in case of collision where there is mutual fault under the Harter act. The Delaware, 161 U. S. 459, 40 L. ed. 771; The Silvia, 64 Fed. Rep. 607, 35 U. S. App. 395, 68 Fed. Rep. 230, 15 C. C. A. 362; The Carib Prince, 63 Fed. Rep. 266, 35 U. S. App. 390, 68 Fed. Rep. 254, 15 C. C. A. 385; The Scotland, 105 U. S. 24, 26 L. ed. 1001. Messrs. Arthur H. Russell and Charles Theodore Russell, for the Ocean Steamship Company, appellee: The two inferior courts agreed in substance in all findings of fact. Their concurrent decisions upon a question of fact are to be followed unless clearly shown to be er roneous. quired by the special circumstances of the case to prevent a collision. The Maria Martin, 12 Wall. 31, 20 L. ed. 251; The America, 92 U. S. 432, 23 L. ed. 724; The Sunnyside, 91 U. S. 208, 23 L. ed. 302; The Elizabeth Jones, 112 U. S. 514, 28 L. ed. 812; The Boanerges, 2 Asp. Mar. L. Cas. 239; The Legatus, Holt, Adm. 217; Handayside v. Wilson, 3 Car. & P. 528; The Vindomora, L. R. 14 Prob. Div. 172. on The time, the distance, the orders board the steamship, all indicate attention and quick effort to avoid collision. The failure to hear the fog horn on the steamer, even if in fact it was blown, as required, is not necessarily negligence. The Annie Lindsley, 104 Ŭ. S. 185, 26 L. ed. 716; The Negaunec, 20 Fed. Rep. 918; The Lorenzo D. Baker, 24 Fed. Rep. 814; The Rosetta, 59 L. T. N. S. 344; Goslee v. Shute, 18 How. 463, 15 L. ed. 462; The Nevada, 106 U. S. 154, 27 L. ed. 149. Compania de Navigacion la Flecha v. Brauer, 168 U. S. 104, 42 L. ed. 398; The Conqueror, 166 U. S. 110, 41 L. ed. 937; The Richmond, 103 U. S. 540, 26 L. ed. 813. The speed of the schooner at the time and place and under the circumstances was immoderate and contrary to the articles of nav-requiring as between two tort-feasors in the igation. Act March 3, 1885, art. 13; The Martello, 153 U. S. 64, 38 L. ed. 637; The Nacoochee, 137 U. S. 330, 34 L. ed. 687; The Colorado, 91 U. S. 692, 23 L. ed. 379; The Michigan, 25 U. S. App. 1, 63 Fed. Rep. 280, 11 C. C. A. 187; The Umbria, 166 U. S. 404, 41 L. ed. 1053. The equity of divided damage—that is, of admiralty as equal a distribution of the loss as can be decreed-is the settled equity of the English admiralty, and has been adopted in this country by many late decisions. The Woodrop-Sims, 2 Dodson, Adm. 83; Hay v. Le Neve, 2 Shaw, Sc. App. Cas. 395; Cayzer v. Carron Co. L. R. 9 App. Cas. 873; Marsden, Maritime Collision, 136; The Catharine v. Dickinson, 17 How. 170, 15 L. There is no distinction in the application of the rule between a steamship and a sail-ed. 233; The Continental, 14 Wall. 355, 20 ing vessel. Lowndes, Collisions at Sea, 73; Spencer, Collisions, 50; The Johns Hopkins, 13 Fed. Rep. 185. A rate of speed at night, in a dense fog, which is immoderate and excessive for a steamer, is less justifiable in a sailing vessel under the same circumstances; and a speed of 7 miles an hour in a fog in Long Island scund is immoderate. The Rhode Island, 17 Fed. Rep. 554; The Louisiana, 2 Ben. 371; The Chancellor, 4 Ben. 153; The Colorado, 91 U. S. 692, 23 L. ed. 379; The Wyanoke, 40 Fed. Rep. 702; The Zadok, L. R. 9 Prob. Div. 114; The Beta, L. R. 9 Prob. Div. 134; The Dordogne, L. R. 10 Prob. Div. 6; The N. Strong [1892] P. 105; The Virgil, 2 W. Rob. 201; The Victoria, 3 W. Rob. 49; The Pepperell, Swabey, Adm. 12. The absence of the officer from the deck, and the consequent necessity of abandoning the lookout in order to take the wheel while the man at the wheel went below to call the officers, were gross negligence in the management and navigation of the schooner. Marsden, Maritime Collision, 439; The Arthur Gordon, Lush. 270; The Khedive, L. R. 5 App. Cas. 876; The Zadok, L. R. 9 Prob. Div. 114; Peck v. Sanderson, 17 How. 178, 15 L. ed. 205; The Charles L. Jeffrey, 5 U. S. App. 370, 55 Fed. Rep. 685, 5 C. C. A. 246; The City of Augusta, 50 U. S. App. 39, 80 Fed. Rep. 297, 25 C. C. A. 430. Even flagrant fault committed by one of two vessels approaching each other from opposite directions does not excuse the other from adopting every proper precaution re L. ed. 802; The Washington, 9 Wall. 513, 19 L. ed. 787; Atlee v. Union Packet Co. 21 Wall. 389, 22 L. ed. 619; The Sunnyside, 91 U. S. 208, 23 L. ed. 302; The Alabama, 92 U. S. 695, 23 L. ed. 763; The Juniata, 93 U. S. 337, 23 L. ed. 930; The Stephen Morgan, 94 U. S. 599, 24 L. ed. 266; The Virginia Ehrman, 97 U. S. 309, 24 L. ed. 890; The City of Hartford, 97 U. S. 323, 24 L. ed. 930; The Connecticut, 103 U. S. 710, 26 L. ed. 467; The Potomac, 105 U. S. 630, 26 L. ed. 1194; The Sterling, 106 U. S. 647, 27 L. ed. 98; The Franconia, 16 Fed. Rep. 149; Briggs v. Day, 21 Fed. Rep. 727; The Troy, 28 Fed. Rep. 861; The Britannic, 39 Fed. Rep. 395. This equity of equal division of the loss, when caused by mutual fault, is not affect least not until the balance is struck between ed by statute limitation of liability,-at the two offending vessels. The North Star, 106 U. S. 17, 27 L. ed. 91; The Atlas, 93 U. S. 302, 23 L. ed. 863; The Manitoba, 122 U. S. 97, 30 L. ed. 1095; The Stoomvart Maatschappy Nederland v. Peninsular & O. Steam Nav. Co. L. R. 7 App. Cas. 795. *Mr. Justice Brown delivered the opinion[543] of the court: There can be no doubt whatever of the lia bility of the steamer, and as she did not appeal, of course she is estopped to deny such liability in this court. 1. Whether the Golden Rule was also liable for excessive speed is a question of more difficulty. She was a topsail schooner, rigged with twelve sails, all of which she was carrying, except one half her double square sail on the foremast, which had been taken | knot breeze, which would indicate a somein. She was sailing on her port tack with what lower rate of speed than in this case. the wind well abaft the beam, through a fog, In the case of The Itinerant, 2 W. Rob. 236, which did not admit of the hull of a vessel decided in 1844, Dr. Lushington was of opinbeing seen more than a few hundred feet ion that it was the duty of the shipmaster, distant. It appears to have been a surface whether in a dense fog or great darkness, to fog, as the crew of the schooner are confident exercise the greatest vigilance and to put his [544]they saw the masts of the steamer some vessel under cominand, although such pre2,000 feet away. The district court was of cautions might occasion delay in the proseopinion that as she was sailing free, with a cution of the voyage. "It may be," said he, fresh wind, her speed could not have been "that for such a purpose it would be his duty less than seven or eight knots an hour. The to take in his studding sails; but such is the court of appeals found only that she was constantly varying combination of circummaking substantially all the speed of which stances arising from locality, wind, tide, she was capable. Her master admits that number of vessels in the track, and other conshe was making from five to six knots; but siderations, that the court cannot venture to as her log, which was taken in at 4 o'clock, lay down any general rule which would abregistered twenty-eight miles for four hours, solutely apply in all cases." So, too, in The we think her speed may be safely estimated Pepperell, Swabey, Adm. 12, Dr. Lushington to have been seven miles an hour. While held a ship proceeding in the North Sea at the commerce in this locality was not as the rate of six and one-half knots an hour great as it was in Vineyard sound, it was during a night so dark that vessels could onnot unlikely that they would encounter other ly be seen at a distance of 100 to 200 yards, vessels coming down the coast. Was seven was in fault if she knew, or ought to have miles a moderate rate of speed under the cir- known, that she was crossing a fishing cumstances of this case? ground. See also The Lord Saumarez, 6 Notes of Cases, 600; The Juliet Erskine, Id. 633. Although the reports of the admiralty courts are extremely fertile of cases turning upon the proper speed of steamers in foggy weather, there is a singular paucity of such as deal with the speed of sailing vessels. Such as there are, however, point to a uniformity of regulation applicable to the two classes. The earliest of these cases is that of The Virgil (1843) 2 W. Rob. 201. This was a collision between two sailing vessels in a dark and hazy night, although there does not seem to have been a fog. As it appeared that the Virgil had the wind free, and was sailing under a full press of canvas, she was held in fault for too great speed. Her actual speed is not given. In the case of The Victoria, 3 W. Rob. 49, a vessel running before the wind on a dark and cloudy night at the rate of from five to six knots an hour off the English coast, was held to have been in fault for proceeding at that rate of speed. These cases were all decided before the new steering and sailing rules, which were first adopted in 1863 by a British Order in Council, and in 1864 by an act of Congress. The twenty-first of these rules, as they appear in the Revised Statutes, section 4233, requires that "every steam vessel shall, when in a fog, go at a moderate speed." No mention is made in this rule of sailing vessels, but the courts, both in England and America, so far as they have spoken upon the subject, have adhered to the rule laid down in the earlier cases above cited-that rates *of[546] speed which would be considered immoderate for steamers are open to like condemnation in the case of sailing vessels. See discussion in The Chancellor, 4 Ben. 153, 160. In The Thomas Martin, 3 Blatchf. 517, a schooner was condemned by Mr. Justice Nelson for racing on a night which was not unusually dark, yet was so overcast and cloudy that a vessel without lights could not be seen at a distance exceeding a half mile. The schooner had all her sails set, with a pretty fresh wind, and was running at a rate of speed that, under the circumstances, he thought could not well be justified considering the character of the night. Upon the other hand, in the case of The Morning Light, 2 Wall. 550 [17: 862], a brig running through Buzzards' Bay in a dark and rainy night, was held not to have been in fault for not shortening sail. The court, commenting on the case of the Virgil, observed: "But such a restriction," as was laid down in that case, "can hardly be applied to sailing vessels proceeding on their In the case of The John Hopkins, 13 Fed. voyage in an open sea. On the contrary, the Rep. 185, it was held by Mr. Justice Hargeneral rule is that they may proceed on lan and Judge Lowell that, in case of a fog their voyage although it is dark, observing and in a place much frequented by vessels, all the ordinary rules of navigation, and it was as much the duty of a sailing vessel [545]with *such additional care and precaution as to go at a moderate rate of speed as it was experienced and prudent navigators usually the duty of a steamer. In this case a brig, employ under similar circumstances. They sailing with the wind nearly aft and making should never, under such circumstances, haz-eight to nine knots through the water, with ard an extraordinary press of sail, and in case a current of two knots in her favor, off the of unusual darkness it may be reasonable to coast of Cape Cod, was held to have been in require them, when navigating in a narrow fault for a collision with a steamer in a pathway where they are liable to meet other dense fog. So in The Wyanoke, 40 Fed. Rep. vessels, to shorten sail if the wind and 702, it was held by Judge Brown, of the weather will permit." The actual speed of southern district of New York, that a schoonthe Morning Light is not given, although the er having nearly all her canvas set and runwind seems to have been blowing a five to sixning in a dense fog off Cape May at a speed |
