The

the purchase of such land, and the title to such land shall rest as fully in the state as though it had never been applied for, and which thereafter shall be subject to sale" by the state. It will be noticed that all the way through the lands applied for are spoken of as a whole, and, so far as the language indicates the intention, is to be all paid for or all contracted for, or all forfeited. contracts to be sent out are to cover the lands applied for, and are to be executed just as sent, or the land is to be forfeited. There is nothing that, to our minds, indicates any intention to allow a division or selection of them to be made. The same must be said of section 8, providing for the form and conditions of the contract. All the way through the lands applied for are spoken of as a unit,-as "such lands." It is upon the remainder of the purchase price of such lands that the applicant is to pay interest annually; it is for the lands described in the contract that he may make full payment and receive a patent; and upon failure to pay the interest due upon such lands they shall immediately and uncondi tionally revert to the state. The language covers all that were applied for in the first instance, and nowhere is anything less than the whole spoken of. There was a purpose, too, in attaching such a condition to the sale of the lands. The policy adopted by the legislature has been to sell as much of this state land, and obtain as much money for It, as possible. In pursuance of this policy it is an advantage to the state to compel the purchaser to either pay for all of the land or forfeit it all. He is more likely to continue to pay upon all, or, if he does not, the state will be gainer to the additional money forfeited, and good land will be surrendered as well as poor. To be sure, the applicant might, perhaps, immediately apply again for the tracts he wishes to keep, but even then the state will be gainer of the money forfeited upon the first payment. Right or wrong, this has been the policy under which our land laws have been framed, and we are of the opinion that the construction we have placed upon the contract and the law is simply in accordance with that policy, and in accordance with the clear intention of the legislature. The demurrer is sustained, and the application for the writ dismissed.

MURPHY, C. J., and BELKNAP, J., con

cur.

(52 Kan. 35)

STATE v. HAIST.

(Supreme Court of Kansas. Oct. 7, 1893.) INDICTMENT-MISNOMER OF DEFENDANT-IDEM SONANS.

The names of Barbara and Barbra are idem sonans, and a plea in abatement to an indictment in which the defendant's name is

spelled Barbra, alleging that her true name is Barbara, is not good. It is error to sustain such plea and quash the indictment. (Syllabus by the Court.)

Appeal from district court, Jackson county; Louis A. Myers, Judge.

Barbra Haist was indicted for violations of the liquor laws, and from a judgment quashing the indictment the state appeals. Reversed.

John T. Little, Atty. Gen., and C. F. Hurrel, for the State. Hayden & Hayden, for appellee.

ALLEN, J. The defendant was indicted by the grand jury in Jackson county, and charged in 13 counts with divers violations of the prohibitory law. She was arrested, and thereafter filed her plea in abatement, alleging that her name is Barbara, not Barbra. The court sustained the plea in abatement, and quashed the indictment. This was error. The names are idem sonans. The mere omission of the letter "a," which in correctly pronouncing the name Barbara has but a very obscure sound, is too trifling an error in spelling to warrant the ruling of the court. Even if there had been a substantial mistake in the name of the defendant, the indictment should not have been quashed for that reason, but the case should have proceeded in accordance with section 224 of the Criminal Code. The orders of the court sustaining the plea in abatement, quashing the indictment, and discharging the defendant, will be reversed. All the justices concurring.

(52 Kan. 95)

JONES et al. v. BOARD OF TRADE OF KANSAS CITY.

(Supreme Court of Kansas. Oct. 7, 1893.) BOARD OF TRADE-USURPATION OF POWER-GRAIN INSPECTION-INJUNCTION,

1. If a bord of trade of a city and its officers are assuming and exercising authority not conferred on them by the statute regulating public warehouses and the inspection of grain, there is ample authority in the state, by its public officers, in an appropriate proceeding, to prevent the unlawful exercise of power, and compel obedience to the law; but another board of trade, which suffers no particular and substantial injury by the unlawful exercise of power or the nonobservance of the law, cannot maintain injunction against the offender.

2. In conferring public functions upon the boards of trade in the matter of inspecting grain, and authorizing the collection of fees, the legislature did not intend that the powers and privileges conferred should be used for the private gain and profit of such boards.

(Syllabus by the Court.)

Error from court of common pleas, Wyandotte county; James M. Rees, Judge pro tem. Action by the Board of Trade of Kansas City against Samuel P. Jones, the Argentine Board of Trade Association, and others, for an injunction. Plaintiff had judgment, and defendants bring error. Affirmed.

H. A. Bailey, John A. Hale, and John T. Little, Atty. Gen., for plaintiffs in error, Morgan & Riley, for defendant in error.

JOHNSTON, J. This is a controversy as to which of the boards of trade shall control and supervise the inspection of grain in the vicinity of Argentine. The action was brought by the Kansas City Board of Trade against the Argentine Board of Trade, Sam P. Jones, and other officers, and in its petition it alleged that it had licensed two public warehouses in the vicinity of Argentine, which licenses were unrevoked, and the deputy inspectors who had been nominated by it had been inspecting grain there and in the vicinity of these elevators, and issuing certificates of inspection, for more than two years; that the Argentine Board of Trade had been subsequently organized, had appointed deputy inspectors, and was seeking to compel the warehousemen to relinquish their licenses obtained from the Kansas City Board of Trade, and supervise and control the inspection of grain in the vicinity of Argentine. It was alleged that the state inspector was co-operating with the Argentine Board of Trade, and endeavoring to make it impossible for the deputy inspectors nominated by the Kansas City Board of Trade to inspect grain at that point. It is alleged that prosecutions have been begun against the deputy inspectors nominated by the Kansas City Board of Trade, and others were threatened, which tended to bring discredit upon the inspectors of the Kansas City Board of Trade, and resulted in great inconvenience to the public and also to private persons. The prayer of the petition was that Jones be enjoined from attempting to discharge the deputy inspectors, and from filing any complaints or causing their arrest, and that he and the Argentine Board of Trade be enjoined from interfering with or harassing the deputy inspectors nominated by Kansas City. The Argentine Board of Trade answered, admitting that the Kansas City Board of Trade had previously issued warehouse licenses to two public warehouses in the vicinity of Argentine, but alleged that it was at a time when there was no duly organized board of trade at Argentine and nearer to the warehouses than Kansas City. It alleged that since the issuance of those licenses the Argentine Board of Trade had been duly incorporated and organized under the laws of the state; that it had issued licenses to warehouses in the vicinity of Argentine other than the two warehouses to which licenses had been previously issued by the Kansas City Board of Trade; that it had nominated, and the state grain inspector had appointed, a sufficient number of deputy inspectors to properly inspect all the grain in that vicinity; that it had notified the proprietors of all the public warehouses in the vicinity of Argentine, and nearer thereto than to Kansas City, of its

existence, and that deputy inspectors, weighmasters, etc., had been duly appointed and qualified to inspect grain in the manner required by law, and that, notwithstanding the laws of the state provided that it should have the exclusive control of inspecting and weighing the grain in that vicinity, the Kansas City Board of Trade continues to inspect grain in the two public warehouses above mentioned, and to weigh the same, and is also collecting the fees for such service, thus depriving the Argentine Board of Trade from the benefit arising from such inspection, and from the fees paid for the same. It is alleged that the state grain inspector, who is authorized by law to supervise and control the grain interests of the state, and to make such rules and regulations regarding the same as may be necessary to enforce the provisions of law, has made rules defining the jurisdiction of the several boards of trade and the duties of the deputy inspectors, but that these rules have been wholly disregarded by the Kansas City Board of Trade, and that it still continues to inspect and weigh grain, and collect fees therefor, in violation of these rules, and in total disregard of the rights of the Argentine Board of Trade. In its prayer it asks that the injunction sought by the Kansas City Board be denied, and that that board of trade be perpetually enjoined from inspecting or weighing any grain in the vicinity or jurisdiction of Argentine, and from collecting or attempting to collect any fees therefor, and from violating or interfering with defendant's exercise and enjoyment of its exclusive right to inspect all grain in its immediate vicinity. The individual officers named as defendants made the answer of the Argentine Board of Trade their own. In the reply filed by the Kansas City Board it disclaimed any right, and alleged that it had made no attempt to inspect grain in warehouses which had been duly licensed by the Argentine Board, but insisted upon the right to inspect grain in the vicinity of Argentine which was not consigned to any warehouse nor designed for storage, where the owners or consignees of such grain desired or requested such inspection. It also avers that it is entitled to inspect grain consigned to warehouses which it had licensed where such licenses are unrevoked and in force. The case was submitted to the court upon the facts disclosed in the pleadings, except that at that time the plaintiff withdrew all demand for relief prayed for in its petition, and the case proceeded to a hearing upon the affirmative claim for relief demanded by the defendant. The court found in favor of the plaintiff, and that the Argentine Board of Trade was not entitled to the relief asked for in its answer, and denied the injunction.

From the admitted facts it appears that the Kansas City Board was first organized, and had issued licenses to warehouses in that vicinity, some of which were nearer to Ar

gentine than to Kansas City. For some time, and in connection with the state inspector and other officers, it inspected the grain received at these warehouses. Afterwards a board of trade was organized at Argentine, and, with a view of inspecting the grain shipped to or stored in that vicinity, it nominated deputy inspectors and other offcers, who were appointed by the state inspector. It then claimed jurisdiction over all grain in store or on track which was nearer to Argentine than to Kansas City. Some of the warehouses in that vicinity obtained licenses from the Argentine Board, while others, which were previously licensed by the Kansas City Board, have not done so, and the latter board continues to exercise jurisdiction over such warehouses, and its officers continue to inspect the grain received by them, although the warehouses are nearer to Argentine than to Kansas City, and although the state inspector has made rules which attempt to place these warehouses within the jurisdiction and under the supervision of the Argentine Board. On the part of the Argentine Board, it is contended that the purpose and intent of the statute is that warehouses must always be under the jurisdiction of the nearest acting board of trade, and that a warehouse license once regularly issued becomes nugatory upon the organization of a board of trade nearer to the warehouse than that which issued the license. On the part of the Kansas City Board it is contended that licenses once issued by it in conformity with law to warehouses remain valid, and justify the inspection of grain by its officers for an indefinite time, or until the licenses have been revoked or superseded by new licenses, voluntarily obtained from the nearer board. It is admitted by the board that a warehouse newly licensed must obtain its license from the nearer board of trade, whether it is entering upon the business, or has been previously licensed, and the license revoked. It is also admitted that the proprietors of the warehouses in question may voluntarily surrender the licenses which they obtained from the Kansas City Board, and obtain licenses from the Argentine Board, and that in such event they would be under the supervision of the Argentine Board.

Although it is said that an interpretation of the statute as to the rights of these boards and the duties of the inspector is desired by all, the defendant in error has challenged the right of the plaintiffs in error to maintain this action. This challenge prevents an examination of the principal points in controversy between the contending parties. If the Argentine Board is correct in its view, it is difficult to see upon what ground it can maintain injunction against the Kansas City Board. It cannot invoke injunction unless its private rights are being invaded by the Kansas City Board, and no other adequate remedy exists. It cannot assume the duties

and responsibilities of the state and the public prosecutor in protecting public interests, and securing the punishment of warehousemen and officers who violate the provisions of the statute. Assuming that it is the duty of the warehousemen to obtain licenses from the Argentine Board, and to submit to its jurisdiction, in what way does that furnish it grounds for the maintenance of an injunction against the Kansas City Board? If the Kansas City Board and its officers are exercising powers not conferred by law, the state may interpose by an appropriate proceeding to prevent the unlawful exercise of power. Granting the position of the Argentine Board, the licenses issued by the Kansas City Board are of no force or value, and furnish no protection to the warehousemen who hold them. Under the statute, licenses must be obtained for public warehouses from the board having authority to grant the same, and any person who transacts the business of a public warehouseman without obtaining such license is guilty of a public offense, and, upon conviction, is subject to a fine. Sess. Laws 1891, c. 248, § 4. It is also provided in section 29 of the same act that an inspector or deputy inspector guilty of any neglect of duty or any improper performance of duty shall be guilty of a misdemeanor, and, upon conviction, may be punished by both fine and imprisonment; and it is further provided, in section 40, that, in all criminal prosecutions against warehousemen for a violation of any of the provisions of the act, it is the duty of the county attorney of the county in which the prosecution is brought to prosecute the same to a final issue. If licenses are issued by the Kansas City Board of Trade without authority, they furnish no protection to warehousemen, and can give the Kansas City Board no power to supervise their business or to inspect the grain which they receive. But the fact that the defendants so license and assume to inspect is not an interference with any private right of the Argentine Board. The warehousemen may be punished for continuing in the business without competent authority, but, if they refuse to take out a license from the Argentine Board, it could not by any action in its own name compel them to do so. While the state inspector appears to have authority to supervise the inspection of grain throughout the state, the statute nowhere gives him authority to maintain an action in his own name to prevent the improper interference complained of, nor to prosecute and punish those who may have violated the law. These are matters of public concern, and proceedings to test the authority of the boards and officers, and to prevent and punish wrongful interference by them, must be brought in the name of the public by the public officer. The warehousemen would have a right to complain and to resist the wrongful collection of license fees or the unwarranted exercise of control over them by the Kansas City Board,

but the voluntary payment of such fees and submission to such control can certainly give the Argentine Board no affirmative right to maintain this action. If they should obtain void licenses from the Topeka, Wichita, Atchison, or Leavenworth Boards of Trade, and submit to inspection from their officers, it would take nothing from the Argentine Board, nor infringe upon its existing private rights.

Considerable is said by plaintiffs in error concerning the benefits and profits arising to them from inspection, and which they have not enjoyed on account of the action of the defendant in error. It is manifest from the provisions of the law that it was not intended as a means of private gain to boards of trade, but the purpose and intention of the legislature evidently was to provide for uniform grades, and for a system of weighing, handling, and storage which would prevent fraudulent practices, and protect the producer, holder, and purchaser of grain. To carry out these provisions, it is provided that boards of trade shall exercise certain public functions, and provision is made for the collection of fees. But it certainly was not intended that more fees should be charged than were necessary to defray the expenses of inspection. The legislature did not contemplate that the boards of trade should use the privilege and authority conferred upon them by the act as a means of private profit and gain to its members. Plaintiffs in error can therefore build nothing upon what they term the "valuable franchise" which the legislature has conferred upon them. If the Kansas City Board of Trade or its officers are acting in disregard of the law, there is ample power in the state, in an appropriate proceeding by its proper officer, to compel obedience to law by any of them, as well as to punish any infraction thereof. But, since their alleged violations of the law do not result in any special or particular injury to the Argentine Board of Trade, it has no right to assume a guardianship over the affairs of state, or to maintain injunction against the defendant in error. The judgment of the court of common pleas denying the injunction will be affirmed. All the justices concurring.

(52 Kan. 18)

In re McCORT.

(Supreme Court of Kansas. Oct. 7, 1893.) VIOLATION OF MUNICIPAL ORDINANCE IMPRISONMENT ON FAILURE TO PAY FINE-POWER OF POLICE COURT.

1. In order that the police court in a city of the second class may commit a defendant, duly convicted of the violation of a city ordinance, to jail, in default of payment of a fine and costs, it is not necessary that a city ordinance should authorize such commitment, because authority to so commit is conferred by paragraph 89, c. 19, Gen. St. 1889.

2. The law permits, but does not require, city authorities to cause city prisoners to work on the streets and public grounds of the city;

and, where a prisoner is confined in the county jail for the nonpayment of a fine and costs duly adjudged against him, he is not entitled to credit on such fine and costs for the time he is confined in the jail, nor to his discharge after the lapse of such time after his commitment as would, if computed at the rate of allowance for work provided in the ordinance, amount to as much as the fine and costs.

(Syllabus by the Court.)

Original petition in habeas corpus by Charles McCort for release from custody. Petition denied.

Milton Brown, for petitioner. John T. Little, Atty. Gen., Dodd Cartwright, and A. J. Hoskinson, for respondent.

ALLEN, J. The petitioner is confined in the county jail of Finney county under a commitment issued by the police court of Garden City, a city of the second class, which shows that the defendant was convicted of drunkenness and disorderly conduct, and fined $10, and costs taxed at $14.40, and committed to the county jail until such fine and costs are paid. The city ordinance under which the defendant was convicted provides that any person convicted of the offenses with which the petitioner was charged shall be fined not less than one nor more than fifty dollars, but is entirely silent with reference to commitment to jail in default of payment of the fine. His counsel contends that, inasmuch as the ordinance does not authorize a commitment to jail, the judgment of the police court committing him is unwarranted and void. Paragraph 89, c. 19, Gen. St. 1889, concerning cities of the second class, provides: "If the defendant plead or be found guilty, the police judge shall declare and assess the punishment prescribed by ordinance, and render judgment accordingly, and for costs of suits, and that the defendant stand committed until the judgment is complied with." This section gives ample authority to commit for the nonpayment of fines and costs imposed under the ordinance. The city council could not, by ordinance, add anything to the authority given the police judge by this section.

Paragraph 68 of said chapter 19 contains the following provision: "And any person committed for nonpayment of fine and costs or either, while in custody, may be compelled to work on the streets, alleys, avenues, areas and public grounds of the city under the direction of the street commissioner or other proper officer, and at such rate per day as the council may by ordinance prescribe, until such fine and costs are satisfied." Section 1 of ordinance No. 25 of the city is as follows: "Whenever any person shall be convicted in the police court of the violation of any of the ordinances of said city and adjudged to pay any fine, or any fine and costs, or costs alone, and shall be committed for the nonpayment of such fine and costs or either of them, such person while in custody may be compelled to work on the streets, alleys,