
    Decided 16 January,
    rehearing denied 24 March, 1908.
    BROWN v. CITY OF SILVERTON.
    93 Pac. 237.
    Costs and Disbursements.
    Under Section 566, B. & O. Oomp., the allowance of costs and disbursements in the appellate court is entirely discretionary, and they will be awarded as different circumstances may seem proper.
    From Marion: William Galloway, Judge.
    Statement by Mr. Commissioner Slater.
    This action was brought to review the proceedings of the recorder’s court of the City of Silverton, wherein the petitioner was charged, tried and convicted of the violation of an ordinance prohibiting the obstruction of streets. The petition and the material facts are the same as in dustier v. dtiy of Silver-ton,, and a like judgment was entered by the circuit court, from which the defendant appeals.
    Modified.
    The case was submitted on briefs, under Bule 1C: 35 Or. 587, 600.
    For appellant there was a brief over the name of Mr. George G. Bingham.
    
    For respondent there was a brief over the names of Mr. L. H. McMahan and Mr. J. E. Hammond.
    
   Opinion by

Mr. Commissioner Slater.

The material facts being identical with the case of Cusiter v. City of Silverton, 50 Or. 419 (93 Pac. 234), that case is controlling. Therefore the judgment appealed from should be modified, and the cause remanded to the lower court, with instructions to remand to the trial 'court, with directions to set aside the judgment and take such further proceedings therein as may be proper, not inconsistent with this opinion. The petitioner should recover costs in this court. Modified.  