UNITED STATES V. TOWN OF 0I0Blt0.
147
careful estimates have testified thaHhe whole tract (160 aores) wiD yield ,at least 5,000;000 feet of merchantable lumber, besides an indefinite quantity of fire-wood and fencing Dlaterial. If the proofs before me were taken for the purpose of determining originally the question as to the proper classifi<;ation of the land, it would be difficult to determine therefrom ,whether or not the land is subject to sale under said act as timber land. But in this suit to cancel a patent a different rule must be applied. A United States patent is the highest evidence of a good title to land in this country. Confidence in such evidence ought not to be impaired by the action of courts in annulling and setting aside such conveyances for trivial reasons, or when the evidence is not sufficient to establish clearly the invalidity thereof. In the case at bar the evidence leaves the issue in doubt; therefore it is the duty of the court to uphold, rather than annul, the action of the land department in selling the land to the defendant, and conveying the title to him by a patent. U. S. v. Budd, 43 Fed. Rep. 630; 12 Sup. Ct. Rep. 575. A decree dismissing the suit for the reason that the evidence does not sustain the of the bill will be entered.
UNITED STATES
e:r: reI..
SPITZER
ee
ale v. ToWN
OJ' CICEBOe
(Ctrcu:U Coun of
Seuen.t.h CircuU. :t4aroh 8, 18l1S.)
1.
Actlnd. March 11,1867, authorized corporated towns to raIse money by Issuing bonds, and to levy an annual tax in addition to the levy for general purposes, no' exceeding 50 cents on each $100 worth of taxable property and '1 on each poll, to pay for the same. Act June 11, authorized town trustees to levy an annuaU tax tor general purposes, not exceeding 50 cents on each $100 of taxable property Bnd:l5 cents on each polL Act 1852, 5 30, proVides that town trustees shall levy a tax "to such an amount as they may deem necessary." Hetd, that a town which had levied and· properly applied the full amount of taxes authorized by the lirst twO statutes aforesaid could not be compelled to make any additional levy to pay ajudgment recovered for interest on bonds issued under the lirst act. "'&UB. , Act Ind. 1859, 127 whlcb· proVides that toWD trustees shall add to tbe tax duplicate of 'each year a levy sufticlent to pay the annual interes.t on, and create a sinking fund for any debt contracted upon petition of tbe citizen owners of live-eighths of tbetaxable I'roperty of the town, does not authorize the levy of a tax to pav interest on bonds issued under a diJferentstatute, and nolo on petition of proPerty
TOWN8-TAX LEVy-INTEREST ON BONDS.
ownere.
Error to the Circuit Court of the United States for the DistrictoC Indiana. Petition for mandamus, on the relation of Spitzer&: Co., to compel of Cicero to levy a tax for the payment of certain judgments. 'l'heappJication was denied, and the relators bring error. Atlirmed. SarnJ.er, & Bowers, (A. W. Hatch, of counsel,) for plaintiffs in error. L. A.' CliJfard, Theo. P.. Davi8, and J. Kane, for defendant in en:or· . Before GBESUAloI, Circuit Judge. and BLODGETr and JENXINS. District Judges.· .
118
'FEDE'RAL
REPORl'rEl1,
vol. 50. '
. f'GREsHA1d:tCircui{\Judge;" In Iespondehtissued its coupon bonds, nmounting to $10,000, to ra'isemoney with which to erect school buildings. In 1877 the debt was refunded by issuing other bonds, on part of which the relators obtained two judgments in the court below, one in 1888 and the other in 1890. In Marcih, 1891, the relators made application for awrit of mandamu8 to compel the respondent to levy a tax for the payment of these judgments. The application was denied, and the relators sued out this writ of error. Each of the first issue of bonds recited that this"Is one of a series of bonds of $10,000, authorized by the town, by an ordi· nance passed by the board of trustees thereof, on the 11th day of December, 1871, and by an amendment thereto, passed on the - - day of February. 1872, forthe purpose of erecting school-houses in said town; in pnrsuance of an act of the general assembly of the state ,of Indiana approved March 11, 1867, and an amendment thereto approved MayI5, 1869, authorizing cities and towns to negotiate and sell bauds for the purpose of erecting school buildings." Each of the last issue recited"That this bond is one of a series of $13,358.53, authorized by an ordinance passed by the board of trustees the 17th day of February. 1877, in pursuance of an act of the general assembly of the state of Indiana approved March 8, 1873. The authority will also be fonnd in the Hevision of 1876. An act to authorize citil's and towns to llegotiat,e and sell bonds to procure means with which to erect and cOlI\plete unfinished school buildings, and to purchase ground and buildings school purposes, and to pay debts contracted for such and completion, and purchase such buildings and grounds. and authorizing the levy and collectIon of an additional school tax for the payment of such bonds." A rnunicipality cannotte compelled to levy a tax in excess of the limit prescribed hy legislative authority; and if the respondent exercised the full power conferred on it by the statutes in force WIlen the relator's bonds were issued, and its power was not enlarged by subsequent statutes, the judgment of the court below must be affirmed., Section 1 of the act of 1867 (the first act referred to in the bonds of the first issue) authorized corporated towns to raise money by issuing bonds not exceeding $30,000, to pay for the construction of school buildings, and section 3 of the same act made it the duty of the town trustees to levy an annual tax, in addition to the levy for general purposes, not exceeding 50 cents on each $100 of taxable property, and $1 on each poll, to pay the interest and principal of such bonds. The act of 1869, and the other act referred to in the bonds of the first issue, amended the act of 1867 in particulars n'ot necessary be noticed. Clause 15 ot'section 22 of an act for the incorporation of towns, approved June 11, 1852, authorized town trustees to levy and collect an annual tax for general purposes, not exbeeding50 cents on each $100 of taxable property, and 25 cents on each poll. The refunded bonds were issued under an act of March 8, 1813,. which authorized towns to issue bonds. not exceeding, in the aggregate, $50,000, to pay for land and the erection of school buildings thereon, and to levy a special school tax for the payment of the same, not exceeding the lirnit prescribed in ·the act of 1867. By an act passed
UNITED STATES 'V. TOWN OF'OICERO.
14Q
March 1, 1877, clause 15 of section 22 of the act of 1852 was amended by conferring power on towns.to tax dogs; These are the only statutes under which the reapondent was authorized to raise revenue to pay the interest and principal of either issue of bonds, and it is not disputed that from 1889 to 1891, inclusive, the full limit of the taxing power therein conferred was exercised, and the revenue thereby raised properly applied. Section 30 of the act of 1852 provides that, before the third Tuesday in May of each year, the town trustees shall declare the amount of general tax to be levied for the current year; and the succeeding tion provides that, when the assessment roll is completed, the trustees shall levy a tax upon the taxable property "to such an amount as they may deem necessary." It is urged that these sections authorized the respondent to make levies sufficient to meet its liabilities, including the two judgments obtained by the relators. This position is untenable. TheSE: sections must be construed in connection with clause 15 of section 22 of the same act. which limits the taxing power as stated. It is also urged that section 27 of the act of 1852 conferred unrestricted power on towns to make levies to pay their just debts. That section reads: "N() incorporated town, Ulider this act, shall have power to borrow money, or incur any debt or liability, unless the citizen owners of five-eighths of the taxable property of such town, as evidenced by the assessment roll of the precedi ng year, petition the board of trustees to contract such debt or loan: and such petition shall have attaehed thereto an affidavit, verifying the gen. uineness of the s'ignatures of the same; and for any debt created thereby the trustees shall add to the tax duplicate of each year successively a levy suffi. cient to pay the annual interest on such debt 01' loan, with an addition of not less than Ii ve ceuts on the hundred dollars, to create a sinking fund for the liquidation .of the principal thereof." This section conferred power on towns to raise revenue to pay the interest and principal of a particular class of bonds, namely, bonds issued on petition of the citizen owners of five-eighths of the taxable property. Neither the rElfunded honds, upon part of which the two judgments were obtained, nor the original bonds, which were issued in 1873, were of that class. They were issued under different statutes, and not on peti. tion of property owners. Moreover, so much of section 27 as conferred power on towns to issue bonds, and perhaps all of it, was repealed by the act of 1867. Clark v. Noblesville, 44 Ind. 83. The relators have been deprived of no right. They were bound to take notice of the limitations upon the power of the respondent to levy and collect taxes for the prompt payment of the interest and principal of the debt, and they must be held to have bought their bonds knowing just what provision had been made for their payment. They took the chance of that provision being ample, apd it is their misfortune that it is not. U. S. v. Ccunty of Macon, 99 U. S. 582. Judgment affirmed.
. ':.; DDERAL REPORTER,
vol. 50.
, SLATER ". BANWELL. (O'lircuftCourt, N. D. Ohio, E. D. AprU
t, 1899.)
DISOOV1mT-1NTlIRROGATORIES-REFUS.u. TO ANSWER.'
A mere statement· in argument by defendant's counsel of a reason for declining to answer an interrogatory is not sufficient; the facts whioh entitle him to protection from answering must be fully stated in the answer.
2. SAME.
Notwithstanding plaintiff's statutory right to examine defendant as a witness upon all matters in issue, the' court will require defendant to answer interrogatories within proper limits, because evidence thus put in the pleadings is of more advantage to the plaintiff than when contained in depositions.
In Equity. Suit by Jarvis A. Slater against James Banwell for infringement of a patent. Heard on exceptions to answer. Exceptions sustained. Hall Fay, for complainant. J· .A.. 08borne, for defendant. RICKS, District Judge. This case is before the court upon exceptions to the defendant's answer. Attached to the bill of complaint are 11 interrogatories, which the defendant is called upon to answer, and by an amendment to the bill a twelith interrogatory is attached. The defendant answered all but the third and twellth, and declined to answer them, on the ground that he was not compelled to do so under the law. The third interrogatory, to which the deflmdant declines to make answer, is as follows:
"Whpther the defendant has. during said term of said patent, Rnd within the United States or the territories thereof. made. used, or sold any machines for making semi-circular handles for sad-irous."
Thlil twcl.fth interrogatory is: interrogatory numuered three be answered · Yes,' and if anyone or mOre of illtel'l'ogalories ,numbered four to eleven. inclusive, be answered ',Nay,' then what was. in full and in detail. the construction and olwration or each ann every machine referred to in the answer to said interrogatory numbered S?"
The def(>ridant, in the third c1l:mse of his answer, sets forth that he was in fact the orip;imd inventor of the principle set forth in complainant's bill, and that long prior to the time when complainant had knowledge of s11ch invention the complaiuantand the dellmdnnt made a machine according to said invention, .which machine was kept secret, and was to be used jointly for the benefit of both parties. The defendant says: . '. . .. "The said machine, built under said agrepment, is the only machine ever IHlilt, so far as. respondent knows. according, to said inventinn, which machine is In the posspsslon of· tile complainant. and is being operated by him, this respondent haVing no possession thereof, and baving no control over said machine."
This is an admission on the part of the defendant that a machine was made by him in accordance with the invention set forth in complain-