(229 P.) It has been held repeatedly that this stat- ceived; hence the statement is fatally defecute is mandatory and must be substantially tive. It would seem that the plaintiff could complied with, or the action cannot be main- have been more definite as to the time by givtained. Dechant v. City of Hays, 112 Kan. ing the approximate hour of the day, and 729, 212 Pac. 682; Mowery v. Kansas City, could have been much more definite in giv115 Kan. 61, 222 Pac. 126; Burroughs v. City ing the circumstances relating to the injury, of Lawrence, 116 Kan. 573, 227 Pac. 328, and but we shall not base our decision upon these cases there cited. defects. The total failure to designate any place within the city where the injuries were received is sufficient to justify the court's ruling. In plaintiff's petition it is alleged "that, prior to the commencement of this action, the plaintiff presented his claim against the city of Arkansas City, Kansas, to the mayor and commissioners of said city, a copy of which is as follows: "Arkansas City, Kansas, Sept. 1, 1922. "The City of Arkansas City to James Haggard, Dr. "Aug. 1st, 1922. To damages sustained by attack of a mob on the 1st day of August, 1922, within the city limits of said city causing great bodily injury and great mental suffering in the sum of ten thousand dollars, $10,000.00, now due and owing." The judgment is affirmed. STATE v. CLAY. (No. 25635.) (Supreme Court of Kansas. Oct. 11, 1924.) (Syllabus by the Court.) 1. Criminal law 211(4)-Complaint held to sufficiently charge felony. The complaint examined in a criminal case and found to sufficiently charge a felony. 2. Criminal law 238-Evidence on prelimInary examination held sufficient to bind ac cused over to district court for trial. The evidence considered and found suffi trict court for trial. 96(1)—Costs 3. Assault and battery Various assignments of error considered and held to be without substantial merit. Appeal from District Court, Clark County; L. M. Day, Judge. This was verified by plaintiff. Passing the question which arises because this was presented to the mayor and city commissioners, instead of having been filed with the city clerk as the statute required, does the statement comply with the statute in "giving the cient to bind the defendant over to the distime and place of the happening of the accident or injury received and the circumstances relating thereto"? It will be noted that the only place mentioned in the statement is "within the city limits of said city." The court will take judicial notice of the fact that Arkansas City is a city of the second class. It necessarily covers a considerable area and has many avenues, streets, and alleys. Plaintiff in his petition claims he was attacked by four men who gave him a beating. The circumstances could have happened in any one of many places in the city. The statement therefore gave the city no notice and no information as to any specific place within the city where it was claimed injuries complained of were inflicted. Courts do not require specific exactness in the wording of a statement of this character, but do require a substantial compliance in good faith with the requirements of the statute. Cook v. Topeka, 75 Kan. 534, 90 Pac. 244; McHenry v. Kansas City, 101 Kan. 180, 165 Pac. 664; Holmes v. Kansas City, 101 Kan. 785, 168 Pac. 1110; Warren v. City of Bonner Springs, 115 Kan. 429, 430, 223 Pac. 447; East Tenn., Va. & Ga. Railroad Co. v. Carloss, 77 Ala. 443; Donnelly v. Fall River, 130 Mass. 115; Rauber v. Village of Wellsville, 83 App. Div. 581, 82 N. Y. Supp. 9; Miller v. Solvay Process Co., 109 App. Div. 135, 95 N. Y. Supp. 1020; Maloney v. Cook, 21 R. I. 471, 44 Atl. 692; Law v. Fairfield, 46 Vt. 425. Here there was not even an effort made to comply with the requirements of the statute as to the place where the injuries were re Emery Clay was convicted of assault, and he appeals. Modified and affirmed. Robert C. Mayse, of Ashland, for appellant. C. B. Griffith, Atty. Gen., and J. B. Hayes, Co. Atty., of Ashland, for the State. HOPKINS, J. The defendant was convicted of assault, and appeals. The testimony, which was not disputed by the defendant, showed, among other things, that the complaining witness (H. C. Butz) was sitting in the door cleaning his finger nails with a knife; that the defendant approached him, calling him vile names and stating to him that there was going to be a fight with or without knives, as Butz preferred; that the defendant took his knife out of his pocket, told Butz that if he (Butz) did not put his knife up that he (Clay) would cut his guts out. Butz closed his knife and put it in his pocket. Clay then did likewise, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen Butz said he did not want to fight, but Clay | complaint and warrant alleged only a simple struck him and knocked him down. As Butz assault, he argues that he should not be chargwas arising, Clay again struck him, knock-ed with costs which accrued in the district ing him down the second time; that at the time the defendant made the threat, he held his knife in his right hand with the blade open; that, immediately after the second time he struck Butz, he again had his knife in his hand. court. He states that he offered to plead guilty to simple assault in justice court. It appears, however, that his offer to plead guilty was in connection with a stipulation that he fix the penalty for his guilt. No offer appears to have been made to plead guilty to assault in the district court. This contention is not The same testimony, substantially, was given by the same witnesses both at the pre-tenable. A defendant has no right, on pleadliminary hearing before a magistrate, and at the trial in district court. The defendant contends that the complaint and warrant under which he was arrested charged simple assault only, and that the magistrate had no authority to bind him over for trial in the district court; that the charge against him constituted a misdemeanor only, and that jurisdiction, having been first acquired by the justice court, the district court was without jurisdiction to try him until he had been tried in the justice court. In support of these contentions he argues that the trial court erred in overruling a motion to dismiss the prosecution because of want of jurisdiction, in overruling his motion to quash the complaint, the warrant, and the information, in overruling his demurrer to the state's evidence and motion for a directed verdict, in the giving of alleged improper and incomplete instructions, and in overruling his motion in arrest of judgment. These various contentions are without merit. [1] The complaint, warrant, and information stated: "Whereas, complaint in writing has been made to me, and it appearing that there are reasonable grounds for believing that on the 15th day of February, 1922, in Clark county, and state of Kansas, one Emery Clay, did then and there unlawfully, feloniously assault H. C. Butz with a deadly weapon, to wit, a large pocket knife held in the right hand of the said Emery Clay with the blade open, and the said Emery Clay did then and there threaten to cut the guts out of the said H. C. Butz with said large pocket knife with the blade open. Contrary to the form, etc." [2, 3] The complaint sufficiently charged a felony, and under the evidence the justice was warranted in binding the defendant over for trial in the district court. The trial court sustained the information as charging a felony, but instructed the jury only for assault. We are of opinion that the trial court committed no error in so doing. See R. S. 62-1023; State v. Burwell, 34 Kan. 312, 8 Pac. 470; State v. Way, 76 Kan. 928, 93 Pac. 159, 14 L. R. A. (N. S.) 603; State v. Wright, 112 Kan. 1, 208 Pae. 630. The defendant also contends that the trial court erred in overruling a motion to retax the costs. Following his contention that the ing guilty to an offense, to prescribe what penalty shall be inflicted as punishment. It does appear, however, that two items of cost in the district court were improperly charged to him, $5 for filing the information and $25 for trial in district court. These items are not in conformity with R. S. 28-105, which, among other things, provides: "Whenever the prosecuting witness or defendant is adjudged to pay the costs, the court shall tax as costs the following fees: For drawing indictment or information for felony, $5; for drawing indictment or information for misdemeanor, $2.50; for drawing complaint for misdemeanor, $2.50; for trial in case of murder or manslaughter, $25; for trial on other felony cases, $10; for trial in misdemeanor cases, $5." Appeal from District Court, Anderson County; Hugh Means, Judge. Action by the Bunting Hardware Company against C. C. Baker, doing business as the Baker Construction Company, and others. From judgment for less than prayed for, plaintiff appeals. Affirmed. John Q. Wycoff, of Garnett, and I. N. Watson, R. E. Watson, John B. Gage, and Henry N. Ess, all of Kansas City, Mo., for appellant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (229 P.) L. T. Cannon, of Humboldt, J. W. Mertz, office of the Bunting company in Kansas of Garnett, and J. W. Rogers, of Kansas City, Mo. The matters in controversy were City, Mo., for appellees C. C. Baker Const. discussed between these parties and officers Co. and the Southern Surety Co. of the Bunting company; Baker and Byerley F. M. Harris, of Ottawa, for appellee Fran- claiming that the matter of payment for rencis A. Poole. HOPKINS, J. The action was one to recover on open account for materials furnished in the construction of a road in Anderson county, and to recover rental for a Thew steam shovel used in excavating for the road. A judgment for the plaintiff for a part only of the items claimed on the itemized account was unsatisfactory, and plain tiff appeals. In September, 1920, the board of commissioners of Anderson county entered into a contract with C. C. Baker for the construction of a section of road designated as the "King of Trails Highway." Baker was obliged to furnish all materials and labor necessary to do the work in accordance with certain plans and specifications. He executed a contractor's bond signed by the Southern Surety Company, as surety, under which he and his surety were obligated to pay all indebtedness incurred for labor and material furnished in the construction of the road. Afterwards Baker entered into a subcontract with one Buskirk, wherein Buskirk agreed to construct the road in accordance with the plans and specifications. Afterwards Buskirk entered into a contract with F. A. Poole, whereby Poole agreed, at his own cost and expense, to do and perform all work, furnish all material and labor necessary to do the work "in accordance with the plans and specifications, etc." Later Buskirk and Poole entered into a supplemental contract whereby Poole agreed to furnish all material and labor necessary to crush rock for the road base on the project. After the execution of the contract, Poole purchased of the Bunting Hardware Company various items of mate rial, amounting in the aggregate to $2,000. These materials were used in connection with the construction of the road. On April 19, 1921, Poole entered into a contract with the Bunting company for the renting of one Thew steam shovel at an agreed monthly rental of $750. This shovel was used on the road from May 19, 1921, to November 30, 1921. The Bunting Hardware Company sought to recover this rental for the period of 61⁄2 months, claiming a total due of $4,750. The shovel was used for excavating rock, loading crushed rock, and excavating and loading shale. Poole's rental agreement with the Bunting company contained an option to purchase. Difficulties were encountered in the construction of the road, and a controversy arose between Baker and the Bunting company in reference to the rental for the steam shovel, and, on July 16, 1921, Baker, accompanied by Poole and one Byerley, visited the tal of the machinery was settled, and that it was understood and agreed that the Bunting company should look entirely to Poole for payment of the rental. This was denied by the Bunting company. It was claimed by the defendants also that the Bunting company had sold the shovel to Poole. The records in the office of the register of deeds of Anderson county showed the filing of a conditional sale contract, dated August 26, 1921, between the Bunting company and Poole, wherein Poole acknowledged the purchase of the shovel at and for the agreed price of $7,800, which agreement provided for a payment of $2,500 September 1st. The Bunting company claimed that this instrument was sent to the register of deeds by mistake, and that there was no actual sale of the shovel to Poole. The defendants introduced a let ter, received by Baker from the Bunting company, dated December 3, 1921, which reads: "It looks as if Poole is absolutely blowed up, and I suppose we will have to take back the equipment we have sold him. This includes the shovel, crusher, and some miscellaneous items on which we will have to stand our loss. Over the phone you spoke of using the shovel until you could get a larger one in. Now, Baker, we want to be fair and I believe at this time of the year it would be impossible to quote straight monthly rental, therefore will make a proposition of $30 per day for the actual days you use same. However, I would want to specify a minimum of 10 days per month, except January and February, which very likely will be bad weather. In fact, we will also include December in this. The understanding is that you load the shovel on board car after you are This will enable you to go through with same. right on as it is until you can make your arrangements, and will not cost you anything for idle equipment. However, you will have to send us a weekly report of the days the shovel is used, as this would be the only way we could check up and keep charge of the charges. I advised Mr. Bishop to send you statement of the amount of Poole's open account, that is, dynamite and miscellaneous items which chargeable to the job under the bond, as you will ultimately have to pay these. Trust that you will immediately write me on receipt of this letter if this is satisfactory, and also advise what arrangements you want to make in regard to the dynamite and other miscellaneous charges, as we want to clean this deal up. We don't think it would be necessary to file claims against the bond, as you realize the best methImmediately upon your od of handling this. receiving the open account, kindly advise us if you want to pay same now or in what way you want to handle. Francis was a very fine boy, but did not know how to drive a job through, and is flat busted from the data we can get on him. Therefore we will just have to swallow our loss, and I expect you will have to do the same on your part. Be sure and advise us by return mail how you want to handle are this, so that we can make all arrangements and operates to repeal the earlier provision with Poole, as the shovel is in his name at to the extent of the repugnancy in the two present, and I will have to be sure that we can acts, although both were incorporated in the straighten everything up. 'Trusting_to_hear revision of the general statutes of 1923. from you in Tuesday's mail, we remain Yours very truly, Bunting Hardware Company, by P. S. Judy, Sales Manager. P. S. J/HG Poole quit the work about the 2d or 3d of December." The court rendered judgment in favor of the plaintiff and against the defendants in the sum of $1,523.86. No special findings appear to have been requested or made. It is evident that the court found that there were Original mandamus by Board of Education of Great Bend against N. A. Turner, Auditor of State. Judgment for plaintiff. Bennett R. Wheeler, S. M. Brewster, and John L. Hunt, all of Topeka, for plaintiff. C. B. Griffith, Atty. Gen., and W. C. Ralston, Asst. Atty. Gen., for defendant. JOHNSTON, C. J. This is an original proceeding in mandamus to compel the auditor of state to register certain school bonds, the issuance of which had been authorized at an election held in Great Bend, a city of the second class, and had been issued by the board of education of that city. A question has arisen whether the issuance of such bonds is governed by R. S. 10-301 or R. S. 72-1820. Each provides a different limitation as to the amount of bonds that may be some items included in the open account which were not lienable and for which the defendants were not liable, also that the plaintiff was not entitled to recover for the rental of the steam shovel. It is contended by the plaintiff that the introduction in evidence of the conditional sale contract and plaintiff's letter of December 3d to Baker raised an issue which had not been pleaded; that such evidence was incompetent under the pleadings. It appears, however, that, when ob-issued by the board of education of a city of jection was made to the evidence, the defendants asked leave to amend their answers to conform to the proof. Whether the court considered the amendment as having been made, or whether the testimony was proper under the general denial, is of little consequence. The court, in the exercise of its sound discretion, could have allowed the amendment, and it may be considered as having been allowed. The plaintiff contends that, even if it sold the shovel to Poole, as stated in the conditional sale contract, it still was entitled to recover two months' rental for the use of the machine before the sale. This was a question of fact, which, on the disputed testimony, was settled by the trial court in favor of the defendants-a matter which this court cannot disturb. the second class, and because of that conflict the auditor declined to register the bonds presented. The amount of the bonds in question are in excess of the limitation prescribed by R. S. 10-301, but are well within the limitation laid down in R. S. 72-1820. Looking first at section 10-301 it is seen that it was originally enacted in 1879, and it authorized counties, cities, boards of education of cities, townships, and school districts to compromise and refund their matured and maturing indebtedness of every kind, and to issue bonds for that purpose, and it also provided that no municipality should increase its indebtedness beyond the amount of the refunding bonds issued until they were paid or liquidated. Laws 1879, c. 50, § 3. The act was amended in 1891, limiting the funding of indebtedness to existing bonded debt that had been issued and was outstanding at least two years, and that except for the refunding of outstanding bonds, no bonds of any class or description should be issued by a county or township in excess of 5 per cent. of the assessment for taxation nor should there be issued any bonds by city, school district, or board of education in excess of 6 per cent. of such assessment, but provided (Supreme Court of Kansas. Oct. 11, 1924.) that cities of the first class should be ex The record presents no reversible error. OF GREAT BOARD OF EDUCATION (No. 25867.) (Syllabus by the Court.) Schools and school districts 91-Law controlling limitation on issuance of bonds by boards of education of cities of second class stated. There is an irreconcilable conflict between the provisions of R. S. 10-301 and R. S. 72 1820, as to the limitation on the issuance of bonds by boards of education in cities of the second class, and as section 72-1820 is the latest expression of the Legislature upon the subject it must be regarded as the existing law, cepted from this limitation. Laws 1891, c. 163, § 2. This act was again amended in 1893 (Laws 1893, c. 113, § 1) in some particulars without changing the limitation as to the amount of bonds that might be issued. In 1909 an act limiting the creation of indebtedness of municipalities was passed which provided that counties and townships should not exceed 1 per cent. of the assessment for taxation, and that cities except those of the first class and boards of education or school districts, might issue bonds up For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (229 P.) to the limitation of 1% per cent. of the assessment. Laws 1909, c. 62, § 2. This later provision was incorporated in and forms a part of the revision of 1923, and is as follows: "R. S. 10-301. Limitation with Reference to Tax Assessment, Except for the refunding of outstanding debt, including outstanding bonds and matured coupons thereof, or judgment thereon, no bonds of any class or description shall hereafter be issued by any county, township, city, board of education or school district where the total bonded indebtedness of such county or township would thereby exceed one per cent. of the assessment for taxation, as shown by the last finding and determination by the proper board of equalization, or where the total bonded indebtedness of such city, school district or board of education would thereby exceed one and one-fifth per cent. of such assessment; but this restriction shall not apply to cities of the first class." "R. S. 72-1820. Bond Issues. That whenever it shall become necessary for the board of education of any city of the second class to provide funds for the purchase of a school site or sites, or to erect a suitable building or buildings thereon, or to equip and furnish the same, to borrow money for such purposes the said board of education is hereby authorized and empowered to issue bonds in the manner provided by law. No such bonds shall be issued until the question of issuing the same shall be submitted to a vote of the people, and a majority of the qualified electors who shall vote on the question at any election called for that purpose shall have declared by their votes in favor of issuing bonds. The total indebtedness of the said board of education shall not thereby be increased to an amount exceeding three and three-fourths (34) per cent. of the assessed valuation of the territory within the jurisdiction of said board of education: Provided, that the boards of education of cities of the second class may issue at any time without such election a bond for a sum not greater than ten hundred dollars to raise money to pay for needful repairs on school buildings, or heating plants for the public school buildings, if the state superintendent of public instruction shall approve in writing such issue. The issue of such bonds shall not exceed at any time an aggregate amount of the sum of five thousand dollars." The origin of R. S. 72-1820 was a section of an act passed in 1876, providing that boards of education might issue bonds to purchase sites and erect buildings thereon, or to fund bonded indebtedness of the district, but it contained no restriction or limitation of the kind in question. Laws 1876, c. 122, art. 11, § 24. This provision was The limitation in the later section enacted amended in 1903, and it provided a limita- in 1920 is the one which controls in the istion of 4 per cent. of the assessment for tax-suance of bonds involved in this proceeding. ation. Laws 1903, c. 434, § 1. The provision It contains the latest expression of the Legcame before the Legislature again in 1905, islature in respect to the limitations imposed which changed the limitation by providing on boards of education of cities of the sec that the total indebtedness of the district ond class in the voting and issuance of bonds. should not be increased by an issue of bonds R. S. 10-301 prescribes a limitation on to an amount exceeding 15 per cent. of the counties, townships, cities, school districts, authorized valuation of the district, Laws boards of education of cities, except in those 1905, c. 398, § 1. The provision was re-enact- of the first class. As to boards of education ed changing the limitation so that in the it is provided that bonds shall not be issued issuing of bonds the total indebtedness by them where the total bonded indebtedness should not be increased to an amount ex- of the territory would thereby exceed 1% ceeding 12 per cent. of the authorized valua- per cent. of the assessment for taxation. tion of the territory. Laws 1909, c. 62, § 7. The language of the act is somewhat obscure In 1911 the act was again amended by sub- as to whether refunding bonds are to be stituting a limitation so that the total in- considered in estimating the outstanding indebtedness should not be increased by the is- debtedness of the municipality, but it has suance of bonds beyond 2 per cent. of the been determined that the terms of the statauthorized valuation. Laws 1911, c. 260, § ute do not warrant the exclusion of such 1. In 1913 the limitation in question was bonds from the count. State ex rel. v. Wyanraised to 24 per cent. of the authorized dotte County, 101 Kan. 430, 166 Pac. 520. valuation. Laws 1913, c. 270, § 1. The lim- The later act is in irreconcilable conflict with itation was changed again in 1917, making it this limitation, as it affirmatively provides 22 per cent. of the authorized valuation. that boards of education of cities of the Laws 1917, c. 272, § 1. In the Laws of 1919, second class may issue bonds to buy sites and c. 264, § 1, the provision was amended in erect school buildings thereon, where the some particulars without changing the lim- total indebtedness shall not be increased to itation on the amount of bonds to be issued. an amount exceeding 34 per cent. of the asAt the special session of the Legislature in sessed valuation of the territory. 1920, an act was passed amending the provision in question, and making the limitation 3 per cent. of the authorized valuation. Laws 1920, c. 55, § 2. There is an obvious repugnance between the two acts as to the limitation on the issuance of bonds by a board of education of a city of the second class, and in that situa The last enactment was carried into the tion it follows that the later act operates to revised statutes, and is as follows: repeal the earlier one, at least to the extent |