Feb 1898.1 Opinion of the Court-DUNbar, J. The record further shows that at the date of the trial, which was a date stipulated by the attorneys for the respective parties, there was no objection on the part of the counsel for the defendant to allowing the counsel for the plaintiff sufficient time to make a showing to sustain their motion for a continuance, but no showing was made, and it was conceded that no showing could be made at that time, and the statements which were made to the court were the purest hearsay. But in any event, it would have been within the power of the court to have dismissed this action for the other reason assigned in the judgment, and there is no showing made, or attempted to be made, to justify the failure of the plaintiff in that respect. The only other question in the case, and the only one which is properly here, is as to the mileage allowed the witness Nasset. It appears from the record that the witness lived at Grant's Pass, in Oregon, and the court allowed him mileage from Kalama, Washington, to the place of trial, and one day's attendance. It is the contention of the appellant that mileage cannot be allowed a witness for any greater distance than twenty miles, that being the distance which he is compelled to go in answer to a subpoena. We have examined the authorities on this proposition, and find them conflicting, so that we feel at liberty to lay down a rule governing this question in this state which commends itself to us as being right. We think it has been almost, if not entirely, the uniform practice of the trial courts to allow witnesses their mileage within the borders of the state whenever it was made to appear to the court that the witness attended the trial for the purpose of testifying in the case. That rule we think is founded in fairness and should be followed. We therefore hold that the court did not commit error in allowing the mileage complained of. The judgment will be affirmed, the respondent to recover the costs of this appeal with the exception of the cost of the respondent's brief. SCOTT, C. J., and ANDERS, GORDON and REAVIS, JJ., concur. [No. 2791. Decided February 25, 1898.] THE STATE OF WASHINGTON, Respondent, v. Louis BOHN, Appellant. ASSAULT WITH INTENT TO COMMIT CRIME SUFFICIENCY OF INFORMA TION. Under the rule that it is not essential to use the words of the statute if others of like import are used, an information charging defendant with making an unlawful and felonius assault is equivalent to charging it as made "in a rude, insolent and angry manrer." When an information alleges a consummated assault in the attempt to commit a crime, a further allegation that defendant had the present ability to carry the attempt into execution is surplusage and not necessary to be alleged. Appeal from Superior Court, Pierce County.-Hon. W. H. H. KEAN, Judge. Affirmed. J. F. O'Brien, and C. P. Bennett, (C. N. Warner, of counsel), for appellant. A. R. Titlow, Prosecuting Attorney, and Hugh Farley, for The State. Per Curiam.-Appellant was found guilty of an assault with intent to commit robbery under an information, the body of which is as follows: "Louis Bohn and R. H. Bowman are accused by the prosecuting attorney of the county of Pierce, state of Washington, by this information, of the crime of assault with intent to commit robbery, committed as follows: The said Louis Bohn and R. H. Bowman on the 26th day of March, eighteen hundred and ninety-seven, at the county of Pierce, and state of Washington, and within one year prior to the filing of this information, did then and there together unlawfully and feloniously assault one Peter Olsen; then and there being, by striking, beating and wounding the said Peter Olsen in the back of the head with a steel chisel, with intent then and there and thereby to unlawfully, feloniously, forcibly and by violence take from the person of said Peter Olsen certain articles of value, to-wit: Money. Contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Washington." He contends that the information should have charged an assault in the language of the statute, viz.: "In a rude, insolent and angry manner," and allege a present ability to carry such attempt into execution. Penal Code, § 20 (Bal. Code, 8 7055). We have repeatedly held that it was not essential to use the words of the statute if others of like import are used, and the clause charging an unlawful and felonious assault was at least equivalent to charging it in a rude, insolent and angry manner. As to the ability to carry it into execution, the information charges a consummated assault or battery and was sufficient in that respect. State v. Ackles, 8 Wash. 462 (36 Pac. 597); State v. Keen, 10 Wash. 93 (38 Pac. 880). Affirmed. [No. 2811. Decided February 25, 1898.] THE CITY OF SEATTLE, Appellant, v. CHIN LET, Re spondent. CONSTITUTIONAL LAW- PROHIBITION OF LOTTERIES-MUNICIPAL COR- PORATIONS- The constitutional provision (art. 2, § 24) that "the legislature shall never authorize any lottery" is mandatory and self-executing and prohibitory of lotteries for any purpose, charitable or otherwise. The provision in Penal Code, § 139 (Bal. Code, § 7259), permitting lotteries for charitable purposes, although enacted prior to the framing of the constitution, falls within the constitutional prohibition against lotteries, and is therefore invalid. Where a state law merely prescribes the maximum penalty for the punishment of misdemeanors at a fine of $500 or imprisonment for not more than one year and specifies no minimum penalty, a city ordinance fixing a minimum penalty of $20 for the punishment of like offenses does not conflict with the constitutional provision that city charters shall be subject to the control of general laws, nor with the charter provision that punishment for violation of the penal ordinances of the city "shall in no case exceed the punishment provided for oy the laws of the State of Washington for misdemeanors." Prosecutions for the violation of municipal ordinances may properly be conducted in the name of the municipality, as the constitutional provision requiring all prosecutions to be conducted in the name of the state applies only to those instituted on account of the violation of the general laws of the state, and has no application to the infraction of municipal ordinances. Where a city is by its charter expressly authorized to provide by ordinance for the punishment of all practices dangerous to public safety or health and make all regulations necessary for the preservation of public morality within its limits, it is not restricted in defining offenses of that character to the exact scope of state laws upon like subjects. Appeal from Superior Court, King County.-Hon. ORANGE JACOBS, Judge. Reversed. Feb. 1898.] Opinion of the Court- GORDON, J. John K. Brown, F. B. Tipton, and Z. B. Rawson, for appellant. William Parmerlee, (Hart & Parmerlee, of counsel), for respondent: The ordinance disregards a statutory exception and does not contain same. Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688. The ordinance increases the minimum penalty provided by state law, and conflicts with provisions of the state constitution and of the city charter of Seattle. Town of Petersburg v. Metzker, 21 Ill. 205; Ex parte Solomon, 91 Cal. 440; In re Ridenbaugh, 49 Pac. 12; Heinssen v. State, 23 Pac. 995; In re Ah You, 25 Pac. 974 (22 Am. Rep. 280, 11 L. R. A. 408); Black, Interpretation of Laws, 116 et seq. The ordinance attempts to enlarge signification of words of our statute law, making that unlawful which, without the enlargement, would be lawful. Kennedy v. People, 49 Pac. 373; Bernheimer v. Leadville, 14 Colo. 520; Davenport v. Rice, 75 Iowa, 74 (9 Am. St. Rep. 454); Emmons v. Lewiston, 132 Ill. 380 (22 Am. St. Rep. 540, 8 L. R. A. 328); Chicago v. Hulbert, 118 Ill. 636 (59 Am. Rep. 400). The opinion of the court was delivered by GORDON, J.-Respondent was prosecuted in the municipal court, of the city of Seattle, for violating the ordinance of that city relating to lotteries. The section of the ordinance in question is as follows: "Section 11. Whoever shall maintain or run, or be in any manner connected with, any lottery or any establishment or business, by whatever name it may be known, wherein any property is sold or disposed of by chance, or whoever shall, within the city, sell or dispose of any lottery ticket or share either for religious or secular purposes, or |