superintendent the question of boundaries and extent of territory of school-districts. In sparsely settled portions of the state the districts will be necessarily larger than where the population is more dense. Of course, he should keep in view the beneficial purpose of the statute, and organize the districts so as to promote that purpose, and to fix the limits to suit the convenience of the inhabitants, and change them "whenever the interests of the inhabitants thereof require it." If the county superintendent abuses the power given him, and establishes boundaries without regard to public convenience, and to the rights and interests of those within the limits of the district, and to be affected by its organization, a remedy is given by appeal to the board of county commissioners. Here, then, is a general statute furnishing ample authority for the creation of the defendant district, and the petition of plaintiff discloses that school-district No. 19, Hodgeman county, Kansas, was organized in April, 1882, and since that time has elected officers, located a school-house site, levied and collected taxes, maintained a school, and is in the full exercise of corporate power. Beyond question, then, the corporation has a de facto existence, and it may be that it was a de jure corporation; but whether it was regularly and legally organized we do not nor can we decide in this action. To maintain this suit and to defeat the tax complained of, the plaintiff must establish, and the court must determine, that the organization of the district is illegal. This cannot be done in the present action. The legality of the organization cannot be questioned in a collateral proceeding, nor at the suit of a private party. The organization cannot be attacked, nor any action taken affecting the existence of the corporation, except in a direct proceeding prosecuted at the instance of the state by the proper public officer. Voss v. School-district, 18 Kan. 467; School-district v. State, 29 Kan. 57; Stockle v. Silsbee, 41 Mich. 615; Clement v. Everest, 29 Mich. 22. In the case last cited it is said that "it would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies; and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons." We do not intend to decide that in organizing this district the county superintendent's action was regular and legal. It is difficult to understand what considerations led him to include within the district such a scope of territory as appears by plaintiff's petition to have been done. It may have been necessary in order to obtain the school population required by statute; or perhaps it was deemed essential to extend the limits so as to secure sufficient taxable property, which, under the limitations imposed by law in levying school taxes, would produce a fund adequate to provide suitable school facilities and maintain an efficient school; or possibly it was within the intention of the authorities to establish several schools within the district, though the plaintiff alleges that but one school site has been established, and but one school maintained. Whether these reasons, or any of them, moved the county superintendent to organize the district with so great an area, we cannot know; and whether they would be legally sufficient, we cannot determine in this proceeding. What we do decide is that there exists a valid law under which the organization can be made; that a corporation has been created thereunder and is in existence; and that if there were any irregularities or illegal action. in its organization, either by reason of the boundaries established or otherwise, that it must be determined by quo warranto proceeding brought by the state. The judgment of the district court will be affirmed. (All the justices concurring.) (33 Kan. 199) SAMS v. BINNS, Assignee, etc. Filed March 7, 1885. ASSIGNMENT FOR BENEFIT OF CREDITORS-DISCHARGE OF INSOLVENT-PROVING CLAIMS-CHATTEL MORTGAGE. If a person, holding a claim secured by a chattel mortgage against one who has made a voluntary assignment, merely proves up his claim, and does not obtain from the assignee an order making the claim a first lien on the property, it is not a valid objection or exception to his discharge that the assignee has only paid upon the claim allowed its pro rata share of the proceeds of the estate. Error from Chautauqua county. On December 27, 1882, George W. Angell made a voluntary assignment of his property for the benefit of creditors. B. E. Binns became his assignee. On November 26, 1883, Binns, as such assignee, made his application to be discharged from his trust, and in his application stated, under oath, that the receipts from the estate were $383.69; that he had adjudicated all claims that had been presented, amounting to $1,023.77; that he had paid 25 per cent. of said claims, amounting to the sum of $255.94; that he had paid expenses of $132.75; that there were no appeals taken or pending from the proceedings before him. The assignee, therefore, asked that his final report be approved, his proceedings adjudged valid, and that he be discharged from the duties of assignee. Among the claims examined and approved by the assignee, was one of W. H. Sams, amounting to $222.66. The amount of money paid to W. H. Sams thereon was $55.67. It appears from the record that on October 7, 1882, Ida M. Angell and her husband, George Angell, executed to W. H. Sams their note for $250; and, to secure said note, at the same time executed a chattel mortgage on a certain stock of groceries in their possession. At the time of the application of Binns to be discharged from his trust, W. H. Sams, the mortgagee, excepted to the report of the assignee, and alleged as his grounds of exception therefor that on October 7, 1882, the assignor and his wife, Ida M. Angell, were engaged in a mercantile business in the city of Sedan, in said county of Chautauqua, and state of Kansas, and, in default of payment of their bills as they became due and payable, were upon the eve of being closed up by the creditors, and to avoid this and enable them to continue in their business, the plaintiff loaned them the sum of $200 for the period of one year, taking their note therefor; that said assignor and his wife executed and delivered to said Sams a chattel mortgage upon their stock of goods; that this mortgage was filed for record on October 9, 1382; that, at the time the mortgage was made out, the parties were living together and doing business, as they represented, together; that, after the assignee had taken possession of the goods, said Sams placed a copy of his mortgage in the hands of an officer, and went where the property was and took possession thereof; that thereupon the assignee promised and agreed with said Sains that, if the latter would allow him to regain possession of the mortgaged property, he would dispose of the same under the assignment and recognize Sams as a preferred creditor; that he would pay his claim first, to the exclusion of all others; that the property assigned by Angell to Binns is the same identical property covered by the mortgage, and that the wife is irresponsible and worthless; that he proved up his claim, relying upon the promise of the assignee to pay the mortgage; that the assignee sold the mortgaged property and refused to pay any part thereof, but insisted that said Sams take his pro rata share with the other unsecured creditors,-therefore, he asks that the court refuse to adjudge the acts of the assignee valid, and require him to pay him the amount of his mortgage. Subsequently, Binns, as assignee, moved the court to dismiss the exceptions of W. H. Sams filed in the case. At the March term of the court for 1884, the motion to dismiss the exceptions was sustained, and thereupon B. E. Binns was discharged from further duty or obligation under the assignment. He was also allowed for his services the sum of $33.35; and W. H. Sams was adjudged to pay the costs of the continuance of the case at the prior term of the court, and also the costs made by filing his exceptions and the motion to dismiss the same. He excepted and now brings the case here. W. P. Hackney, for plaintiff in error. He HORTON, C. J. The plaintiff in error has mistaken his remedy. He did not present to the defendant in error, as assignee, his chattel mortgage securing his claim at the time and place designated by the assignee for adjusting and allowing demands against his estate. seems to have contented himself with merely proving up his note before the assignee, and obtaining an allowance of the same and his pro rata share thereof, relying upon the verbal promise of the assignee to pay his claim as a first or prior lien. If he had presented his chattel mortgage at the time his demand was allowed, he could. then have obtained an order making his claim a first lien. Sections 21, 22, 23, c. 6, Comp. Laws 1879. If the assignee had decided against the priority of his chattel mortgage, he could then have appealed from his decision to the district court. Again, plaintiff in error might have retained in his possession the property described in the chattel mortgage, and satisfied his claim by a sale of the goods as permitted by the statute. Section 17, c. 68, Comp. Laws 1879. At the time that the assignee presented his application for a discharge from his duties, all of the claims examined and approved by him had been paid their pro rata share from the proceeds of the sale of the property of the estate. The exceptions, as filed by the plaintiff in error, to his discharge were properly ignored by the district court. If the assignee obtained the mortgaged property from the possession of the plaintiff in error, upon the agreement to pay him his claim in full, and has failed so to do, his remedy is other than by filing objections to his discharge. The judgment of the district court will be affirmed. (All the justices concurring.) (33 Kan. 216) PLEASANT HILL & D. S. R. Co. D. CARPENTER, Treasurer, and others. CONSTITUTIONAL LAW-SALARIES OF RAILROAD COMMISSIONERS-COUNTIES-SUP- Error from Johnson county. A. A. Hurd and Robert Dunlap, for plaintiff in error. John T. Little, for defendants in error. PER CURIAM. Under the authority of Atchison, T. & S. F. R. Co. v. Howe, 32 Kan. 737, S. C. 5 PAC. REP. 397, we must hold that the taxes levied for the payment of the salaries and current expenses of the board of railroad commissioners of the state are null and void. Under the authority of Kansas City, T. & W. R. Co. v. Albright, 33 Kan. —, S. C. ante, 276, the commissioners of Johnson county had authority to levy and assess a tax for the support of the poor of that county in an amount in excess of $500, without a previous vote of the people at a general clection authorizing the levy. The demurrer to the first cause of action will be overruled, but the demurrer to the second alleged cause of action will be sustained. The cause will be remanded, with direction to the court below to dispose of the case in accordance with the views herein expressed. (33 Kan. 217) KANSAS CITY, T. & W. R. Co. v. CARPENTER, Treasurer, and others. KANSAS CITY, L. & S. K. R. Co. v. CARPENTER, Treasurer, and others. Filed March 7, 1885. A. A. Hurd and Robert Dunlap, for plaintiff in error. John T. Little, for defendants in error. PER CURIAM. All of these cases are the same in every respect as Pleasant Hill De Soto R. Co. v. Carpenter, supra, and the decision given in that case is applicable to these. 7. CRIMINAL LAW AND PROCEDURE - PLEA OF FORMER JEOPARDY-WAIVER BY ATTORNEY-NEW TRIAL. Where a defendant in a criminal prosecution is convicted, and he moves for a new trial upon various grounds, among which are the following: "(6) The information does not state sufficient facts to constitute an offense; (7) the information and the evidence do not show or prove any offense under the laws of Kansas;" and the court grants the new trial as prayed for in the defendant's motion; and the court also finds that the information "did not state facts sufficient to constitute the offense of which the defendant is found guilty," and orders that a new information be filed by the county attorney, which is done: he d, that the defendant, by moving for and obtaining such new trial, has waived his right to subsequently plead former jeopardy 2. SAME-NEW TRIAL-EFFECT OF GRANTING. In this state, when a new trial is granted on the motion of the defendant in a criminal prosecution, the granting of the same places the party accused in the same position as if no trial had been had. 3. SAME-ENTRY OF NOLLE PROS.-TRIAL ON NEW INFORMATION. And after a new trial has been granted on the motion of the defendant in a criminal case, the attorney for the state, with the consent of the court, may enter a nolle prosequi without prejudice to a future prosecution, and thereafter the defendant may be put upon his trial and convicted upon a new information charging the identical offense set forth in the prior information. 4. SAME-MOTION IN ARREST OF JUDGMENT. And the same result would follow if, instead of a motion for a new trial being made and granted and a nolle prosequi being entered, a motion in arrest of judgment were made by the defendant upon the ground that the information did not state a public offense, and the motion were granted. 5. SAME-RAPE-INFORMATION. A criminal information under sections 283 and 31 of the crimes and punishments act, charging the defendant with an attempt to carnally and unlawfully know a female child under the age of 10 years, may be sufficient, although the word "rape" may not be used in the information, and held, that the information in the present case is sufficient, although the word "rape" is not used therein. 6. SAME-WORDS OF STATUTE DEFINING OFFENSE. The exact words used in a criminal statute defining a public offense are never required to be used in a criminal information charging such offense, but any equivalent words, or any words clearly and intelligibly setting forth the offense, are all that are required. 7. SAME-VERDICT-ATTEMPT TO COMMIT RAPE. In a criminal prosecution, where the information sufficiently charges the defendant under sections 283 and 31 of the crimes and punishments act with attempting to commit the offense of rape by attempting to carnally and unlawfully know a female child under the age of 10 years, but does not use the word "rape" in charging the offense, and the jury finds that the defendant was "guilty of an attempt to commit a rape, as charged," held, that the verdict is sufficiently responsive to the information, and is valid. Appeal from Cloud county. J. W. Sheafor, for appellee. VALENTINE, J. This was a criminal prosecution upon an information charging the defendant with an attempt to carnally and unlawfully know a female child under the age of 10 years. The prosecution was under sections 283 and 31 of the crimes and punishments |