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name whatever," carrying persons for hire, Article XV, section 1: and that all such "have designated stands “The city council shall have power, subject to and run only on special calls, and are not the restrictions herein contained, to make all held out as running over any special route, necessary and proper for carrying into effect the
rules, regulations and ordinances which may be and they charge a higher fare than jitneys”; powers specified herein.' that all these are required to pay only said
Article XV, section 14: $2 license fee, and no bond is required of * * * * The council may enact any ordithem; that all automobiles permitted to op-nance not in conflict with the penal laws of the erate in the city, whether private cars, serv- state.' ice cars having designated stands, or jitneys, Article XIII, section 1: are subject to the same traffic ordinances, "The city council shall have exclusive control except such special provisions as are in said
over and regulation of all streets, alleys, side
walks and highways and the public squares withjitney ordinance relating to jitneys alone; in the corporate limits of the city, and shall that Mr. Bogle, on the date charged in the have power: * * [Subdivision h.] To regcomplaint against him, operated a five-pas- ulate the use of the same. senger Ford automobile in the city as a jit- Article XIV: ney running on a route having definite ter- "The city council shall have power by ordimini of less than 35 blocks, which automobile nance: [Section 10.] To license and regulate operated by him would clearly be a jitney, and to fix the rate to be charged for the carriage
hacks, carriage, omnibusses, wagons and drays, as defined in section 1 of the attacked or- of persons and for the wagonage, cartage and dinance. This ordinance makes it an offense drayage of property. * * Section 32.] to thus operate a jitney without license, and To regulate the speed and handling of automo
biles.' it was for that only Mr. Bogle was arrested
Under these powers and authority, we and held in custody by the chief of police.
think unquestionably the city had the power It is further agreed that there was a street and authority to enact and enforce any and car system operating in the city as a carrier
all reasonable ordinances which it deemed of passengers under a franchise; that it car- necessary and proper to regulate the hanries passengers and gives transfers anywhere aling of automobiles and the use of the streets on its lines for five cents fare. It is not re- by persons owning or operating the same in quired to take out license nor give bond. It the carriage of passengers for hire. A jitney is required and pays the city $1 per mile is an automobile, both in fact and so agreed occupation tax, and the same amount to the herein, and as specially defined by section 1 county, and double that to the state. Its of said ordinance; in fact, as we understand, franchise and the city ordinances require it appellant concedes that the city council had to pave its tracks and one foot additional on power and authority to pass all reasonable each side thereof wherever the city paves, ordinances regulating the jitney and the opand to maintain the same space on all other leration thereof on the streets of the city. streets where its tracks are laid. It has
 However, the first ground of his attack spent alone for paving in the city over $300,- on said jitney ordinance is substantially 000, and its annual paving is about $30,000. this: That section 1 of said ordinance, when It pays the city $4,900 ad valorem tax, and considered in connection with other ordione-half that sum to the state and county nances and the testimony, violates section 3, annually. Its gross receipts annual tax to art. 1, of our state Constitution and the the state is $1,955, and its federal income tax fourteenth amendment of the Constitution is $611 annually. Its total annual tax for of the United States, in that it discriminates the space of each passenger is $58.76.
between the rights of the same class, and  The charter of the city of Austin was places a greater burden upon one than angranted by the Legislature, approved Febru- other of the same class, and that whether the ary 3, 1909, and by a provision therein the amount charged be a tax or license fee. courts are required to take judicial knowl- In the recent case of Ex parte Sullivan, edge thereof. Special Laws of 1909, pp. 8–45. 178 S. W. 537, we discussed an ordinance of It provides that the mayor and four council- the city of Ft. Worth, Tex., of which the ordimen shall be known and designated as the nance attacked herein is substantially and city council, and have all legislative, execu- practically the same, and therein held, as we tive, and judicial functions or powers grant- do in this case that the said ordinance vioed. Among other provisions of the charter lates neither our state Constitution nor the and powers given the city council are these: Constitution of the United States in this parArticle XI, section 1:
ticular. What we said in the Sullivan Case "The city council shall be vested with the pow on that subject specially applies to this case. er and charged with the duty of adopting all We think there can be no question but that law and ordinances, not inconsistent with the the jitney, as defined in the ordinance herein Constitution and laws of the state of Texas, and as operated by Mr. Bogle, is a class withtouching every object, matter
and subject within the purview of the local self-government, confer in itself, separate and distinct from both the red by this act upon the citizens of the city of street car system and other automobiles or Austin."
vehicles which have stands as described Article XIV, section 38:
above. In addition to the Sullivan Case and * * To make and regulate stands for authorities therein cited, we cite Ex parte vehicles at said depots and other public places." | Cardinal (Cal.) 150 Pac. 348. By the ordinance all jitneys are treated exactly alike, In the Sullivan Case, supra, we held that and neither within that class is treated in the bond required therein was a proper reguany way whatever different from another. lation. We likewise hold in this case that
 He next attacks sections 9, 10, and 11 the bond required herein is a reasonable regof said jitney ordinance, requiring a bond, ulation, not void nor unconstitutional on any claiming that it is beyond the power of the ground, and is a proper regulation, as shown city, and its charter confers no right, either in this case is the city of Austin. In addiexpress or implied, to create a cause of action to the authorities cited on this point in tion in behalf of individuals strangers to the the Sullivan Case, we now cite case Ex parte licensee or licensor or to provide a remedy Bell, 24 Tex. App. 428, 6 S. W. 197; Greene for such, or to insure or indemnify the city v. San Antonio (Civ. App.) 178 S. W. 6; Ex for damage or loss, unless the same is of parte Cardinal, supra. such a nature as to render the city liable In this connection, and others as well, it either by statutory or common law; and by was further agreed herein: That prior to the terms of the ordinance and conditions of the passage of the jitney ordinance attacked the required bond it affirmatively appears there were about 60 jitneys running in the that the damage or loss sought to be guard-city. Some of them had inexperienced or recked against is not of this character. These less drivers, and few of them had any finansections of the ordinance, in effect, as a pre-cial responsibility, except some owned the requisite for a license to operate a jitney, re- Ford car operated. These jitneys traversed the quire that for each jitney the owner, etc., most traveled streets of the city, and largely shall procure and file with the city an indem-confined their traffic to the paved or best nity bond or policy of insurance in the sum graded or graveled streets, and practically of $5,000, conditioned that the licensee shall paralleled all the street railway lines, and pay any judgment of court finally rendered in going their usual route all, or about all, against him, etc., to the extent of $2,500 on of them traversed certain mentioned streets, account of injuries to or death of any person which are the principal streets of the city or injury to the property of another and to and in the most congested centers of ordithe extent of $5,000 for like injuries occur- nary traffic, and tended to greatly congest the ring in one accident to more than one per- traffic of said streets. That during the 60 son caused by the negligence of such licensee, days prior to the passage of said ordinance etc., and further conditioned to hold the city there were a number of accidents due to the harmless from any and all claims, etc., result- jitneys. That the city council, in view of the ing to it from the granting of such license. traffic conditions brought about by the advent This bond can be made by either a surety of the jitney and of the accidents due to company authorized to do business in this their presence and their menace to the genstate or by personal security. Neither these eral safety of the public, deemed that there sections nor the ordinance as a whole, as was an imperative and urgent necessity for we understand it, in any way creates, or at the passage of said jitney ordinance. tempts to create, in behalf of any person, any It is further agreed herein that the jitliability against the licensee or his bondsmen, ney traffic in the city is a business done, carbut it merely provides as one of the reason- ried on, and operated solely upon the public able regulations of the licensee that he shall streets and thoroughfares of the city, and is provide by such bond or indemnity a means largely confined to the paved streets and best to satisfy the loss to such one as may be dam- graded and graveled streets, and that the aged by him finally rendered by a court. It jitney is a new and hazardous kind of pasin no way prescribes any contingency under senger traffic, and the danger to individual which the licensee should be liable to any accident and injury is greater, and that the person for any negligence whatever commit- number of accidents in proportion to the ted by him or other act by him. The city number of passengers carried and injuries would have no right to create that kind of has, in fact, been greater in this line of pascause of action, and, as stated, it does not senger traffic than in any other commonly attempt to do so.
used. It is agreed herein that the city of San It was further agreed that, by reason of Antonio, Tex., had an ordinance regulating the new and hazardous nature of the jitney jitneys, wherein it required as a prerequisite service, very few surety or indemnity comto a license that the jitney owner should exe- panies would undertake such security until cute a bond in the sum of $10,000, with the the class, character, and nature of the servconditions thereof somewhat like the condi- ice have been reduced to a system (that it tions of the bond of the ordinance herein was not meant thereby that thereafter either attacked, and that also the city of Ft. Worth, of said bonds could or could not be given Tex., had a like ordinance requiring a bond under said jitney ordinance), and that a perin the sum of $2,500, with somewhat of the sonal bond could ordinarily be given only by same conditions; that in the city of San An- a careful driver known to his sureties to be tonio, under the ordinance of that city, 91 temperate, cautious, and reliable; that the such bonds as there required had been given, said bonds given in the cities of San Antonio and under the ordinance of the city of Ft. and Ft. Worth were made by an indemnity Worth 89 bonds as there required had been company. It was further agreed that appliTex.)
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neys to certain named indemnity companies, ordinance on that ground, anyway; for it is without success, and that a certain other conclusively shown that he has in no way atcompany would write a policy on autos car- tempted to procure a license and been refused rying passengers for hire, but would not on any ground. However, we might say that, write a policy under the ordinance attacked. if even he was in a position to attack the or
[4, 5] The next ground of attack is of sec- dinance on this ground, we see nothing in it tion 7 of said ordinance, which prescribes a but a reasonable and proper regulation, and license fee of $50 per annum for each jitney we see nothing in it which would authorize with a seating capacity of five or less, includ- or justify this court to hold the ordinance, ing the driver, and of $75 for a seating ca-or. any provision of it, void on that ground.
 His next attack on the ordinance is his pacity of not more than seven, but more than five, including the driver, and of $100 claim that the difficulty of complying with its for a seating capacity of more than seven requirements practically amounts to a propersons, including the driver, claiming that hibition, and that the amount of the fees rethese fees are not license fees, but an eva- quired to be complied with before the bond sion of the law, and, in fact, a tax for rev. can be given and the terms and amount of enue for city purposes, and not as a police the bond are requirements which cannot be regulation.
complied with. The relator's contention on
The whole So far as the relator is concerned, he is in this point cannot be sustained. no position to attack said section of the ordi- agreed facts indicate that, if he is a proper nance for the amount of the latter two fees, person to operate a jitney under said ordibecause it is conclusively shown that he nance, he may reasonably comply therewith, comes within the $50 class only, and we do and that its provisions do not amount to a not pass upon those features of that section prohibition. The burden is on him to show prescribing the $75 and $100 amount of li- what he claims, and not on the state or city cense fees. On this point, in addition to the to show otherwise. In the agreed facts as a agreed facts above recited, is this further whole, we think it is shown that he can reaagreement: That the carrying out of said jit- sonably comply therewith, and hence the or
. ney ordinance will require the printing of dinance is not void on this ground.
His last contention is that, the arbitrary blanks and stationery for licenses, applications, bonds, and such other matters as are the power reserved by the city to cancel it
power preceding the issuance of license and named in the ordinance, and will require and throw him out of business at any time more clerical labor, all at an expense to the city that cannot now be estimated, and that into business, and tends to, and does, prevent
discourages the investment necessary to go the policing of the ordinance will require competition and results in building up a motwo, or possibly three, extra policemen at a nopoly in behalf of the street car company. salary of $90 each per month, including a We think it unnecessary to discuss this genmotorcycle man and cost of the motorcycle, eral attack of the ordinance. We see nothing all at an additional expense of probably in it that would sustain the relator's conten$2,500 a year, if the same number of jit- tion. On the contrary, we see from it only neys were in operation, and that in fixing the the proper
and reasonable regulation of the amount of said license fees the council did business and the proper requisites of persons not expect the sum realized therefrom to only who should be authorized by the city to more than pay the expenses of policing and
operate jitneys on its streets. It may be enforcing said ordinance, and did not expect that some persons would experience some to or contemplate the realizing of any reve difficulty in complying with the ordinance, nue to the city over and above the additional but no more so than any other like hazardous expense caused by the proper enforcement of
and dangerous business. said ordinance. We think that this demon
We have carefully investigated this ordistrates that the said $50 license fee was, in
nance and the relator's attack of it and the truth and in fact, a license fee only, and not questions raised by him, and reviewed the a tax to provide an extra revenue, and that Sullivan Case, supra, and the authorities this section of the ordinance is unquestion therein cited, and have reached the conclusion ably valid. Ex parte Sullivan, supra, and au- that there is nothing in the ordinance herein thorities there cited.
attacked that would in any way legally per[6,7] In the next attack on the ordinance mit or authorize this court to hold it invalid. he claims that, as a whole, it is unreasonable, On the contrary, it is our opinion that the and clothes the city with arbitrary power to said ordinance, in the particular attacked grant or refuse a license though the fees are wherein relator is in position to attack it, paid, and all the requirements thereof com- is valid and constitutional, under the agreed plied with by an applicant for a license. statement of facts on file. This question was also discussed and passed
It is therefore ordered that the relator be upon in the Sullivan Case, supra. We see remanded to the custody of the city marshal. no necessity of further discussing it here. The attacked ordinance herein is in no essen- DAVIDSON, J. I cannot concur. I wrote tial particular different from the Ft. Worth fairly fully in the Sullivan Case my views ordinance passed upon in the Sullivan Case. of disagreement. I may write in this case MEMORANDUM DECISIONS
BENITO V. STATE. (No. 3800.) (Court of MIKE V. STATE. (No. 3796.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) Criminal Appeals of Texas. Nov. 3, 1915.) ApAppeal from Ellis County Court; W. M. Tid- peal from Ellis County Court; W. M. Tidwell, Judge. Benito, a Mexican, was convicted well, Judge. Mike, a Mexican, was convicted of gaming, and he appeals. Affirmed. C. C. of gaming, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State. McDonald, Asst. Atty. Gen., for the State.
HARPER, J. Appellant was convicted of PRENDERGAST, P. J. The appellant in gaming, and his punishment assessed at a fine this case was fined $10 for gaming, the lowest of $10. Neither a statement of facts nor any penalty prescribed by law. There is neither bills of exception accompany the record. The a statement of facts nor a bill of exceptions information charges the offense of which ap- in this case. No question is raised which can pellant was convicted. No ground is stated in be reviewed in the absence of these. The judgthe motion for a new trial we can review in the ment therefore is affirmed. absence of the testimony. The judgment is affirmed.
PELATA V. STATE. (No. 3798.) (Court CASE V. STATE. (No. 3597.) (Court of of Criminal Appeals of Texas. Nov. 3, 1915.) Criminal Appeals of Texas. June 16, 1915. Appeal from Ellis County Court; W. M. TidRehearing Denied Oct. 13, 1915.) Appeal from well, Judge. Pelata, a Mexican, was convicted District Court, Rains County; William Pier- McBonald, Asst. Atty. Gen., for the State.
Affirmed. C. C. son, Judge. Buck Case was convicted of rape, and he appeals. Affirmed. W. W. Berzett, of
HARPER, J. Appellant was convicted of Emory, and Campbell & Mansell, of Alba, 'for gamins, and his punishment assessed at a appellant. C. c. McDonald, Asst. Atty. Gen., fine of $10. Neither a statement of facts nor for the State.
any bills of exception accompany the record. PRENDERGAST, P. J. Appellant was con appellant was convicted. No ground is stated
The information charges the offense of which victed of rape, and assessed the lowest punish- in the motion for a new trial we can review
There is no bill of exceptions nor state in the absence of the testimony. ment of facts. In the absence of these there is ment is affirmed.
The judgno question which can be reviewed. The judgment is affirmed.
RODREGUEZ v. STATE. (No. 3801.) (Court GOODMAN v. STATE. (No. 3688.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) of Criminal Appeals of Texas. Oct. 13, 1915.) Appeal from Ellis County Court; W. M. TidAppeal from Criminal District Court, Dallas well, Judge. Jose Rodreguez was convicted County; W. L. Crawford, Jr., Judge. Bertha of gaming, and he appeals. Affirmed. C. C. Goodman was convicted of robbery, and she McDonald, Asst. Atty. Gen., for the State. appeals. Affirmed. C. C. McDonald, Asst. HARPER, J. Appellant was convicted of Atty. Gen., for the State.
gaming, and his punishment assessed at a fine PRENDERGAST, P. J. This is an appeal of $10. No statement of facts or bill of exfrom a conviction for robbery, with 25 years ceptions accompany the record. The informain the penitentiary assessed as her punishment. tion charges the offense of which appellant There is neither a bill of exceptions nor a state was convicted. No ground is stated in the moment of facts. Nothing is raised which can be tion for a new trial we can review in the abreviewed in the absence of these. The judg- sence of any testimony. The judgment is af
firmed. ment is therefore affirmed.
JOHN V. STATE. (No. 3797.) (Court of SEGUIN V. STATE. (No. 3694.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) | Criminal Appeals of Texas. Oct. 13, 1915.) Appeal from Ellis County Court; W. M. Tid-Appeal from Bexar County Court; Nelson well, Judge. John, a Mexican, was convicted Lytle, Judge. Mariano Seguin was convicted of gaming, and he appeals. Affirmed.
Affirmed. C. C. of unlawfully carrying a pistol, and he apMcDonald, Asst. Atty. Gen., for the State. peals. Affirmed. C. C. McDonald, Asst. Atty.
PRENDERGAST, P. J. The appellant in Gen., for the State. this case was fined $10 for gaming, the lowest PRENDERGAST, P. J. From a conviction penalty prescribed by law. There is neither a for unlawfully carrying a pistol, with the statement of facts nor a bill of exceptions in lowest penalty assessed, this appeal is prosecutthis case. No question is raised which can be ed. There is no statement of facts or bill of reviewed in the absence of these. The judg- exceptions, and nothing is raised in the record ment therefore is affirmed.
which we can review. The judgment is therefore affirmed.
MICKEY v. STATE. (No. 3807.) (Court of Criminal Appeals of Texas. Nov. 10, 1915.) SLOAN V. STATE. (No. 3678.) (Court of Appeal from District Court, Bexar County ; Criminal Appeals of Texas. Oct. 13, 1915.) W. S. Anderson, Judge. Richard Mickey was Appeal from Johnson County Court; B. Jay convicted of arson, and he appeals. Affirmed. Jackson, Judge. Henry Sloan was convicted of C. C. McDonald, Asst. Atty. Gen., for the State. making a sale of intoxicating liquors in pro
PRENDERGAST, P. J. Appellant was con- hibition territory, and he appeals. Affirmed. victed of arson, and his punishment assessed C. C. McDonald, Asst. Atty. Gen., for the State. at 5 years in the penitentiary. There is no HARPER, J. Appellant was convicted of statement of facts and no bill of exceptions. In making a sale of intoxicating liquors in prothe absence of these nothing is presented which hibition territory. The record contains neither Ark.)
tions ; consequently there is nothing to review, PER CURIAM. Appeal dismissed on appelthe indictment charging an offense. Affirmed. lee's motion for failure of appellant to comply
with the condition prescribed by the statute in
misdemeanor cases. STRANGE v. STATE. (No. 3706.). (Court of Criminal Appeals of Texas. Oct. 20, 1915.) Appeal from McLennan County Court; Geo. RALPH V. STATE. (Supreme Court of N. Denton, Judge. Sheb Strange was convicted Arkansas, Sept. 28, 1914.)Appeal from Cirof aggravated assault, and he appeals. Affirm- cuit Court, Sebastian County, Greenwood Dised. C. C. McDonald, Asst. Atty. Gen., for the trict; Daniel Hon, Judge. State.
PER CURIAM. Appeal dismissed on appelPRENDERGAST, P. J. Appellant was con- lee's motion for failure of appellant to comply victed of an aggravated assault, and fined $75. with the condition prescribed by the statute in There is no statement of facts in the record, misdemeanor cases. and nothing is presented which can be reviewed in the absence of this. The judgment is therefore affirmed.
ST. LOUIS SOUTHWESTERN RY. CO. v. HEEREN. (Supreme Court of Arkansas, Sept.
28, 1914.) Appeal from Circuit Court, CalTOLLIVER v. STATE. (No. 3671.). (Court houn County; Charles W. Smith, Judge. of Criminal Appeals of Texas. Oct. 13, 1915.)
PER CURIAM. Settled, and appeal disAppeal from Criminal District Court, Dallas
missed on appellant's motion. County; W. L. Crawford, Jr., Judge.
Jim Tolliver was convicted of a public offense, and he appeals. Affirmed. C. C. McDonald, Asst. Atty. Gen., for the State.
ST. LOUIS SOUTHWESTERN RY. CO. v. HARPER, J. The record before us contains TRUBY. (Supreme Court of Arkansas. Sept. neither a statement of facts nor any bill of ex. 28, 1914.) "Appeal from Circuit Court, Columceptions. The information charges an offense bia County; Charles W. Smith, Judge. against the laws of this state, and there is no question presented we can review. Afirmed. PER CURIAM. Settled, and appeal dis
missed on appellant's motion.
TREUBINE V. STATE. (No. 3799.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.) OGLESBY v. FT. SMITH DISTRICT OF Appeal from Ellis County Court; W. M. Tid- SEBASTIAN COUNTY. (No. 38.) well, Judge. Joe Treubine was convicted of gaming, and he appeals. Affirmed. C. C. Mc
(Supreme Court of Arkansas. Dec. 6, 1915.) Donald, Asst. Atty. Gen., for the State.
Dissenting opinion. HARPER, J. Appellant was convicted of For majority opinion, see 179 S. W. 178. gaming, and his punishment assessed at a fine of $10. Neither a statement of facts nor any
McCULLOCH, O. J. (dissenting). Two of bills of exception accompany the record. The the justices who have voted to affirm this case information charges the offense of which appel- declare the law to be that the county court has lant was convicted. No ground is stated in the the power to employ counsel, in addition to the motion for a new trial we can review in the ab- prosecuting attorney, to conduct litigation in sence of the testimony. The judgment is af- which the county is interested. I agree unfirmed.
qualifiedly with that conclusion, and so does Mr. Justice WOOD. That makes four of the
judges who are of the opinion that the county WILLIS v. STATE._(No. 3702.) (Court of court possesses that power. The authorities Criminal Appeals of Texas. Oct. 20, 1915.) cited in appellant's brief sustain that view. Appeal from District Court, El Paso County : Those authorities relate generally to municipal W. D. Howe, Special Judge. C. E. Willis was corporations, but the principle is the same that convicted of burglary, and he appeals. Affirm- where a county or municipality has authority ed. C. C. McDonald, Asst. Atty. Gen., for the to direct litigation in which it is interested it State.
may employ special counsel, and the fact that PRENDERGAST, P. J. Appellant was con- an official attorney has been provided by law victed of burglary, and assessed the lowest pun- does not curtail that power. Our statute (Kirishment. There is no statement of facts, nor by's Digest, $ 1493) expressly provides that the any bills of exceptions. Nothing is presented county court shall defend cases appealed to the which can be reviewed by this court. The judg- circuit or Supreme Court, and that all expenses ment is therefore affirmed.
incurred by reason of such defense shall be paid by the county. It is therefore necessarily implied that county courts shall provide the means
for conducting litigation in which it is interestCHICAGO, R. I. & P. R. CO. v. JONES. ed, and that includes the employment of attor(Supreme Court of Arkansas. Sept. 21, 1914.) neys. Appeal from Circuit Court, Prairie County, Two of the judges say that, while the county Southern District; Eugene Lankford, Judge.
court has the power to employ counsel, it canPER CURIAM. Appeal dismissed on appel- not exercise that power and enter into a conlant's motion.
tract of employment with another attorney without first obtaining the consent of the pros
ecuting attorney, or at least until after he has HURST v. STATE. (Supreme Court of Ar- been consulted. If there is any authority at all kansas. Oct. 5, 1914.) Appeal from Circuit for employing additional counsel to represent Court, Pulaski County, First Division; Robert the county in its litigation, it is to be exercised J. Lea, Judge.
by the county court. Certainly there is no auPER CURIAM. Appeal dismissed, on appel- thority conferred by statutes on the prosecuting lant's motion.
attorney to exercise that power or to hinder its exercise by the county court. If the county
court possesses the power at all, it may exercise KIGER V. STATE. (Supreme Court of Ar- it in disregard of the wishes of the prosecuting kansas. Sept. 28, 1914.) Appeal from Circuit attorney and without consulting him. Any othCourt, Sebastian County, Greenwood District; er view of the matter necessarily places the