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Opinion by Simpson, C.: This is an original action in quo warranto, the object of which is to determine whether Frank Meyer or John I. Deniston was duly elected register of deeds of Comanche county at the general election in 1889. Meyer was declared elected by the board of county canvassers, and received a certificate of election, and within twenty days after the notification of his election, and prior to the second Monday in January, 1890, he took and filed with the county clerk his oath of office, and demanded of Deniston the possession of the office and the things belonging thereto. Deniston, who had previously been elected for a term of two years, and who was legally in the possession of the office, refused to turn it over to Meyer, claiming that he and not Meyer had been elected in 1889. In July, 1890, Meyer tendered to the board of county commissioners, then in regular session, his resignation, which was accepted, and one S. D. Stipp was appointed to serve until the election in 1890. Stipp took the oath of office, filed a bond, and demanded possession of the office from Deniston, who refused to surrender. This action was commenced on behalf of Stipp on the 26th day of July, 1890. The official canvass of the election in 1889 shows 680 votes cast for candidates for the office of register of deeds, and of these Frank Meyer received 345, and John I. Deniston re ceived 335. Deniston alleges that at the polling place of Coldwater township J. M. Stringer, Gater Stringer, Perry Kin man, J. H. Grataer, G. W. Hoffman, Walter Goff, J. S. Calloway and Samuel Brown voted for Frank Meyer, when in truth and in fact they were not qualified electors, and not entitled to vote at said election; that in Valley township Abram Vanwey, Otto Barley, W. S. Mussett, Isaac Mussett, E. F. Bidwell, H. H. Dunham, James Crouch, Alexander Borland, George Overocker and Burt Crew voted for Frank Meyer for register of deeds, and that each and all of them were not qualified voters; that in Protection township W. M. Davis, W. Y. Davis and Newton Davis voted for Frank Meyer for register of deeds, and .that each and all of them were not qualified electors; that in Irwin township Jonathan Morgan and C. M. Ross each voted for Frank Meyer for register of deeds, and that they were not qualified electors; that in'A villa township Samuel Young voted for Frank Meyer for register of deeds, and that he was not a qualified elector; that in Shimer township Thomas Curran and R. C. Brennon voted for Frank Meyer for register of deeds, and that they were not legal voters; that one O. P. Snare voted at the polls in this township for Frank Meyer for register of deeds, for and in consideration of the sum of $7.50, and that this is an illegal vote; same as to one S. O. Miner, who voted for Meyer for a consideration of $5; same as to one William Maynard. This makes 29 illegal votes that are alleged by Deniston to have been cast for Meyer, and if these are deducted from the 345 given Meyer by the official canvass, Deniston was legally elected. ' It is shown by the evidence that Abram Vanwey, Otto Barley, W. S. Mussett, Isaac Mussett, E. T. Bidwell, H. H. Dun-ham, James Crouch, Alexander Boland, George Overocker and Burt Crew were at the time of the election, to wit, on the 5th day of November, 1889, and had been for more than 35 days before that time, residents at Gorham’s ranch, in the Indian Territory, and were not actual residents or legal voters in the state of Kansas; that on the day before the election they agreed to vote at Valley township precinct in Comanche county, Kansas, and to all vote alike, and to vote for Frank Meyer for register of deeds of Comanche county. They voted at that precinct on the day of election. The poll-books in evidence show that they voted together, their votes being numbered on the poll-books as Nos. 7, 8,9, 10, 11, 12, 13, 14,15, and 16, It was shown that the tickets were prepared by Dun-ham, who scratched the name of John I. Deniston off and inserted the name of Frank Meyer. The handwriting of Dunham in the change of the tickets was conclusively proven, and the tickets themselves were in evidence, and it appears from them that but nine tickets were changed. All these men were most clearly not entitled to vote, and it must be held that there were nine illegal votes for Meyer and one for Deniston. William M. Davis, William Y. Davis and Newton Davis all testify that they left Comanche county on the 22d day of April, 1889, and went to Oklahoma, and there took homestead claims and .made settlement and some improvements on their claims, and intended to make their homes in Oklahoma; that in the month of October they came back to Comanche county for various purposes, intending to return to Oklahoma before the election, but that certain persons agreed with them that, if they would stay until after the election and vote, they would be paid for their time. They all three stayed, voted for Frank Meyer for register of deeds, and left for Oklahoma on the 6th day of November, the day after the election, where they have ever since resided. It is plain that these three men cast illegal votes for Meyer. It is. admitted that J. S. Calloway voted at Coldwater township polls. His ballot is numbered 29 on the poll-books, and that the name of Frank Meyer, as a candidate for register of deeds, appears on that ballot. S. T. Golloher testified that, in September, 1889, and long before that time, he was a resident of the state of Alabama; that he knew J. S. Calloway, who was and had been for five years a resident of the state of Alabama; that when Golloher moved to Kansas, in September, 1889, he left Calloway in the state of Ala bama, and that Calloway wanted Golloher to bring him to Kansas; that he first saw Calloway in Kansas in the month of October, 1889. On this state of facts, it must be held that the vote cast for Meyer by Calloway was an illegal vote-Thomas Curran, who moved from Logan township to Shimer township on the 10th day of October, 1889, had rented a place in Shimer township on the 19th day of September, and before the 10th day of October had moved a part of his household furniture and some live stock and farming implements to the rented place, but still resided .in Logan township with his family until the 10th day of October. He voted in Shimer township, and voted for Frank Meyer for register of deeds for Comanche county. C. M. Ross voted in Irwin township, but had moved into that township within six or eight days before the election; before that time he had been living in Coldwater township, and had been engaged in moving his effects for 60 days prior to the election, intending to make his home and permanent residence in Irwin township. He voted for John I. Deniston for register of deeds. His vote and that of Curran are so similar in their surroundings that the same rule must be applied to both. In this particular case, one having voted for Meyer and the other for Deniston, the result cannot be affected, no matter what the decision may be.' The legality of the votes of R. C. Brennon, Gater Stringer and others is challenged on the following grounds: Gater Stringer, whose deposition was taken in Kingfisher county, in the territory of Oklahoma, testified that on the 8th day of June, 1889, he filed a homestead claim on land in the territory of Oklahoma; that he broke ground and put in a small crop in May and June, 1889, and built his house in November and December, 1889; that from the time he filed on his claim and made settlement, he intended to make that his home and raise his family there. He • went back to Cold-water, Comanche county, his former residence, to see his family, who still remained there; voted at the election on the 5th day of November, 1889, for Frank Meyer for register of deeds; left again for Oklahoma on the 7th day of November; his family followed him shortly afterward; and they have all resided in Canadian county, Oklahoma, ever since. R. C. Brennon filed a homestead claim on land in Oklahoma on the 4th day of June, 1889; he commenced to make his improvements about the middle of September; he intended to make it his home, and had no intention to return to Comanche county, Kansas. His family first came to Oklahoma about the middle of September, 1889, but some time before the election he and his family came back to Comanche county to disspose of what crop they had on hand, and to live until they got ready to move away. He voted and served as a judge of the election in Shimer township. He voted for Frank Meyer for register of deeds. He and his family left Comanche county in the latter part of November for their claim in Oklahoma, where they have ever since resided. Perry Kinman left Comanche county to take a homestead in Oklahoma, and made his filing on the 12th day of June, 1889. He planted some in July, and built his house in the winter. He had been back to Comanche county two or three times, but intended always to and did return to Oklahoma. He was in Comanche county on the day of election, and stated that he voted the straight republican ticket without a scratch. Deniston was the republican candidate for register of deeds. It is very evident that neither Gater Stringer, nor R. C. Brennon nor Perry Kinman was a legal voter in Comanche county. Two of them voted for Meyer and one for Deniston. One A. H. Wineburner stated that he had received $10 from Deniston for work done for him during the campaign. At the time Deniston paid him a part of the money, he told Wineburner he expected his vote, but Wineburner says that he had not promised to vote for him prior to receiving this money. Deniston does not deny giving the money, but claims he did not offer to pay any until Wineburner had declared that he was going to vote for him, and then the money was furnished to pay the expenses of Wineburner on his trips to different localities. It seems to us that this would be a corrupt vote, if it was shown that Wineburner did vote for Den iston. There. is an inference arising from what is recited above that Wineburner did so vote, but it is at best an inference, when with Wineburner on the stand it was within the power of the party producing him as a witness to establish the fact. So with the witness Charles E. Ferguson, who testified that during the first part of the campaign he was for Frank Meyer, and during the latter part of the campaign he was for Deniston; that Deniston paid him for certain work he did, and expenses incurred on his behalf, but the witness is not asked for whom he voted, nor is it shown by other evidence that he did vote at the election. Samuel Brown testified that he voted at Coldwater for Frank Meyer for register of deeds, and that he was paid the sum of $5 for his vote in favor of Meyer. This embraces all the material evidence respecting illegal votes cast at that election for either party, but does not include a mass of stuff consisting of loose declarations and hearsay, to which we have given no weight. It appears that the following illegal votes were cast for Meyer, to wit, those of Abram Vanwey, Otto Barley, W. S. Mussett, Isaac Mussett, E. T. Bidwell, James Crouch, Alexander Boland, George Overocker, Burt Crew, William M. Davis, William Y. Davis, Newton Davis, J. S. Calloway, Gater Stringer, R. C. Brennon, and Samuel Brown. It appears that the following illegal votes were cast for John I. Deniston, to wit, those of EL II. Dunham and Perry Kinman —two in all. The canvass of the county board is corrected so as to show that 333 votes were cast for John I. Deniston for register of deeds, and 329 for Frank Meyer for register of deeds of Comanche county. It is recommended that judgment be entered declaring that John I. Deniston was duly elected register of deeds of Comanche county at the election in question, and that a judgment be rendered in his favor for costs. By the Court: It is so ordered. Valentine, J., concurring. Horton, C. J.: I think, under the evidence introduced upon the trial, that John I. Deniston was elected register of deeds of Comanche county at the general election held in November, 1889, but, in my opinion, his majority was only one or two — not more than two in any event. I think, upon the evidence, J. S. Calloway should be counted for Meyer, that Thomas Curran was a legal voter for Meyer, and that A.H.Wineburner — who voted, I think, for Deniston — should not be counted, because his vote was a corrupt one. I make the legal votes as follows: Deniston, 331; Meyer, 330; Deniston’s majority, 1. If Wineburner’s vote is not taken from Deniston’s vote, the canvass should be corrected so as to show: Deniston, 332; Meyer, 330; Deniston’s majority, 2. Johnston, J.: The evidence submitted is not clear or satisfactory as to the exact number of legal votes that were cast for each candidate, but an examination of the same fails to convince me that the board of county canvassers made any mistake in issuing a certificate of election to Frank Meyer, or that John I. Deniston was elected register of deeds by a majority of the legal votes which were cast.	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The opinion of the court was delivered by Horton, C. J.: On the 26th day of March, 1888, A. C. Ireland filed his petition in foreclosure against C. V. Holmes, Olive P. Holmes, E. N. Evans, and Mary M. Evans, to recover the sum of $450 upon a promissory note executed by C. Y. Holmes to him, and asking to foreclose a mortgage given by C. Y. and Olive P. Holmes to secure the note. The-petition alleged that the defendants E. N. Evans and Mary M. Evans had some inferior, adverse interest in the mortgaged premises. A summons was issued on the petition and personally served upon each defendant. On the 1st of April, 1888, the defendants C. Y. and Olive P. Holmes filed in the cause an answer and cross-petition. The answer, among other things, alleged that, on the 23d day of January, 1887, C. Y. Holmes and wife executed and delivered to E. A. Beecher a conveyance of the mortgaged premises; that, as a part of the consideration for the conveyance, E. A. Beecher assumed and agreed with them to pay the note or indebtedness secured by the mortgage. At the May term, 1888, of the court, an order was made for E. A. Beecher to be made a party defendant, and on the same day a praecipe for a summons was filed by the attorney for the defendant C. V. Holmes, and on this prsecipe a summons was issued, which was served upon E. A. Beecher personally, and which required him to answer the petition of the plaintiff. At the September term, 1888, of the court, without any amendment to the petition, and without E. A. Beecher having ever appeared, A. C. Ireland recovered judgment against E. A. Beecher and C. V. Holmes, for the sum of $510, and obtained a decree to sell the mortgaged property and to make any deficiency off the property of E. A. Beecher, Afterward, and at the sjame term of the court, Beecher appeared specially, and moved to set the judgment aside. This motion was overruled, and he brings the case here. The petition which E. A. Beecher was required to answer by the summons personally served upon him did not contain his name, nor were there any allegations therein sufficient to sustain or uphold any personal judgment against him. (Short v. Nooner, 16 Kas. 22; Neitzel v. Hunter, 19 id. 221.) It was therefore error for the court, as to Beecher, to do more than render a degree for the foreclosure of the mortgage and a sale thereof to satisfy the judgment, costs, and expenses. Counsel for the plaintiff below cite Kimball v. Connor, 3 Kas. 414, and allege that under that decision Beecher was required to take notice of all the pleadings on file at the date of the issuance of the summons served upon him. In that case it was decided that, when the original summonses served upon a defendant, he is in court for every purpose connected with the action, and is bound to take notice of every subsequent step taken therein. It was further held in the case, that the defendant, having been served with a summons to answer the petition, was bound to notice the answer or cross-petition subsequently filed by a co-defendant. This case is somewhat different. The defendant was called upon to answer a petition which did not state any cause of action against him or refer to him in any way, and. no subsequent answer or cross-petition was filed after the issuance of the summons served upon him. It was admitted, on the hearing of his motion, that the defendant E. N. Evans, at the commencement of the action and during its pendency, was the owner of the mortgaged premises by purchase from Beecher, subject to the mortgage. Therefore, if the petition had alleged these facts, or any cause of action against Beecher, or if his attention had been called to the answer or cross-petition of C. V. and Olive P. Holmes by any subsequent order or notice personally served upon him, he could have had the judgment rendered so as to have made Evans personally liable, before execution could issue against either himself or the Holmeses. We have already held in several cases, that if a defendant has been personally served with a summons, the petition cannot be materially changed without notice, when the defendant is in default or is absent. (Haight v. Schuck, 6 Kas. 192; Alvey v. Wilson, 9 id. 401; Gulf Rld. Co. v. Van Riper, 19 id. 317.) We are unwilling to extend the case of Kimball v. Connor, 3 Kas. 414, and therefore think that the trial court committed error in rendering a personal judgment against Beecher, in view of all the circumstances attending this case. The judgment of the district court will be reversed, and the cause remanded for further proceedings. All the Justices concurring.	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Opinion by Strang, C.: This was an action to determine the priority of certain liens between the parties thereto. It was tried by the court June 12,1888, on the following agreed statement of the facts: “S. A. Brown & Co. entered into a contract with D. A. Wilson, defendant, in December, 1886, to furnish lumber and materials to erect a building on lots 1, 2, and 3, block 7, Yates’s 4th addition to the city of Yates Center, Kas. At the date of said contract G. H. Phillips held the legal title to said lots, which were at that time unimproved ; but there was an agreement between said Phillips and D. A. Wilson by which said Phillips was to convey said lots to said D. A. Wilson; that on January 1, 1887, G. H. Phillips and wife conveyed said lots to said D. A. Wilson by warranty deed, and that on January 6,1887, said D. A. Wilson and wife executed and delivered to Scott & Brier, defendants herein, a mortgage on said lots to secure the payment of $550, for the purpose of obtaining money to pay for the lumber and materials to erect a dwelling on said lots; that S. A. Brown & Co. had, prior to January 1, furnished a portion of said lumber, and work had commenced on said house, and balance of said lumber was furnished at different times subsequent to January 1, 1887, and the house was completed some months afterward; and that, within four months after the completion of said building, the mechanics’ lien statement of S. A. Brown & Co. was properly filed in the district clerk’s office; that to secure a part of the purchase-money said D. A. Wilson and wife executed and delivered to said G. H. Phillips, on January 6,1887, a mortgage of $150, which was afterward transferred to Meyer Drug Company, one of the defendants; that said mortgage was made subsequent to said mortgage of said Scott & Brier; that said Phillips had knowledge that said mortgage of Scott & Brier was executed to obtain money for the erection of said building, and that said Phillips sold the lots with the understanding that a building was to be erected thereon; that some time in December, 1886, said Phillips, by contract with Wilson, agreed to sell to him the lots in question for $100 to be paid January 1, 1887, time on balance, but length of time not mentioned; that Wilson commenced to build, b.ut without any understanding with Phillips that anyone should acquire any lien prior to his (Phillips’s); that when Phillips gave a deed it was with the understanding with Wilson that there should be no liens except Scott & Brier’s mortgage ahead of his mortgage, which was for part purchase-money, and Phillips never had any talk or understanding with Brown & Co. about the matter; that Brown & Co. had no knowledge of the talk between Phillips and Wilson in regard to liens or 'mortgages aforesaid.” On said statement of facts the court found that S. A. Brown. •& Co. were entitled to a first lien upon the premises, for the amount of their claim, $120.46; that Moses Clark, assignee of the defendants, Scott & Brier, was entitled to a second lien on the premises, for the amount of his claim, $648.25; and that the plaintiff in error, the Meyer Brothers Drug Company— assignee of G. H. Phillips — was entitled to a third lien upon the premises, for $176. Meyer Brothers objected to the judgment of the court, and bring the case here for review, and say they should have been given a second lien upon the premises, it being conceded by the plaintiff in error that Scott & Brier should have the first lien thereon, and that the lien of S. A. Brown & Co. should have been postponed to both the lien of Scott & Brier and their own. The agreed statement of facts, which contains all the evidence in the case, shows that in December, 1886, G. H. Phillips was the owner of the lots described in the petition.of the plaintiff below, and that some time during that month -he verbally promised to sell the premises to D. A. Wi-lson for $250, $100 to be paid January 1, 1887, with time to Wilson on the balance. Wilson paid the $100 on the 1st of January, 1887, and Phillips and wife made to him a deed for the lots on that day. On the 6th day of the same month Wilson and wife executed to Scott & Brier a mortgage covering the premises, for $550, to secure that amount of money borrowed of- them by Wilson for the purpose of erecting a house on said lots. At the same time Wilson also executed to G. H. Phillips a mortgage for the balance of the purchase-money for said lots. These mortgages were immediately placed on record. It was understood between Phillips, Wilson, and Scott & Brier, that Scott & Brier should have the first lien upon the premises, and Phil lips should have the second lien thereon. The agreed statement also shows that in December, 1886, Wilson contracted with S. A. Brown & Co. to furnish him lumber and material to erect a house on said lots; that they furnished him some lumber on the 3d of December, 1886, and the balance from time to time subsequently thereto, until September 21, 1887, when the last material was furnished. The amount of lumber, in value, furnished December 3,1886, was $122.12. January 31, 1887, there was paid on said contract for lumber, $122.12. The next payment, $138.41, was made February 25, 1887, and the last one September 27, 1887. The agreed statement also shows that work was commenced on the building before the 1st of January, 1887. The contention of the plaintiff in error is, that Wilson had no title to the lots in December, when he contracted for the lumber with S. A. Brown & Co., and consequently no interest therein to which a lien for lumber and material sold before the 1st of January could attach. And, second, that if Wilson had any interest in the lots to which a lien for the lumber furnished in December could attach, that lumber was fully paid for January 31, 1887, and any claim for compensation, or a lien therefor, was thus fully satisfied. And as to material furnished after January 6, 1887, any lien therefor must be subsequent to the lien of the plaintiff in error. . We do not think either of the positions of the plaintiff in error is tenable. It is conceded that at the time Wilson contracted with S. A. Brown & Co. for material, Phillips had, by a verbal agreement, promised to convey the lot's to Wilson on the 1st of January, and that said agreement was executed at that time by Phillips deeding the lots to Wilson. The agreed statement shows that work was actually begun on the building in the month of December. It follows, then, that Wilson was in possession of the lots and had commenced the erection of the building, for' the construction of which S. A. Brown & Co. had contracted to furnish material, before any mortgage was placed on record against the lots. It is true that the legal title to the lots was in Phillips when the contract for material was made between Wilson and S. A. Brown & Co., but as Phillips had agreed to convey the lots to Wilson, and gave Wilson possession of them for the purpose of erecting a building thereon, Wilson had sufficient title therein to enable him to contract for material for the construction of the building, and sufficient for a lien to attach thereto under the law of this state giving a material man a lien for materials furnished for the erection of buildings. When Phillips, in December, agreed to convey the lots to Wilson, and gave him possession of them, Wilson got such an equity therein as made him an owner within the meaning of our statute relating to liens for material. Hence S. A. Brown & Co. had a right under the law to contract with him to furnish material for the construction of a building thereon, and .also to secure a lien on the premises for the material so furnished, in preference to any subsequent lien obtained against the lots. (Hathway v. Davis, 32 Kas. 693; Phil., Mech. Liens, §§ 69, 139; Lumber Co. v. Osborn, 40 Kas. 168; Huff v. Jolly, 41 id. 537; Lumber Co. v. Schweiter, 45 id. 207; Mortgage Trust Co. v. Sutton, ante, p. 166.) As to the second point made by'the plaintiffs in error, while it is true that the' lumber furnished by S. A. Brown & Co., December 3,1886, was fully and exactly paid for by the payment made January 31,1887, yet it does not necessarily follow that the lumber delivered subsequently was sold on a separate and distinct contract from the one made in December. The fact that lumber and materials, amounting in value to $122.12, were sold and delivered in December, and no more lumber was delivered until February 25, coupled with the fact that on the 31st of January, 1887, a payment was made for the exact value of the lumber first delivered, creates an inference, perhaps, that there were two separate contracts for lumber, and that the lumber first purchased had been fully paid for by the payment of January 31,1887; but this inference, and it is but a mere inference, arising from the exhibit attached to the petition, is overcome by the agreed statement of facts, which says: “S. A. Brown & Co. entered into a con tract with D. A. Wilson, the defendant, in December, 1886, to furnish lumber and material to erect a building upon lots 1, 2, and 3,” being the lots described in the petition of the plaintiff below. From this statement, it appears that S. A. Brown & Co., in December, contracted to furnish lumber and materials for the building, which means the whole building. This statement completely excludes the idea that there was one contract for part of the lumber in December, and another for the balance in February following. If the contract for lumber and materials to erect the building was made in December, there was no occasion for a new contract in February, for lumber and materials for the same building. And, besides, if there were two contracts for the lumber, the agreed statement should have shown that there were, instead of stating that a contract was made in December for the material for the building, which, as stated above, means the whole building. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Per Curiam: The applicants, Samuel Dalton and Elma B. Dalton, were charged with contempt, by the district court of Cowley county. Said supposed contempt consisted of a criticism of the acts and declarations of the judge and court at a trial of a cause, and were embodied in a brief filed in this court, in a cause that was tried in the Cowley county district court, and determined in September, 1890. The case was brought to this court by proceedings in error, filed herein on the 20th day of February, 1891, and the brief containing the contemptuous language was filed in this court on the 12th day of March, 1891. This court has said that, after a case is disposed of in the court in which it originated, or is pending— “A court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or an animadversion thereon, no matter how severe or unjust.” (In re Pryor, 18 Kas. 72.) It is ordered that the petitioners be discharged.	[ -80, -22, -19, 92, -86, -32, 56, -100, 94, -31, 121, 83, -81, -42, 4, 97, 115, 77, 117, 123, -28, -74, 23, 64, 114, -45, -109, -105, -79, -49, -9, -34, 72, 52, -54, -35, 71, 72, -61, 84, -122, 39, 9, 79, -47, -54, 48, 121, 16, 79, 21, -81, -13, 42, 29, 99, 104, 56, -49, 56, 64, -111, -100, 5, 94, 6, 3, 38, -100, 3, 64, 58, -112, 49, 3, -8, 115, -90, -122, -12, 75, -119, -87, 118, 102, 1, -84, -1, -104, -120, 54, 122, -99, -90, -110, 89, 106, -117, -66, -99, 80, 16, 39, -6, 71, -116, 29, 108, 12, -49, -108, -73, -113, 56, -100, -109, -29, -93, 49, 17, -123, -74, 92, -58, 49, -101, -50, -86 ]
The opinion of the court was delivered by Mason, J.: Mike Tecza recovered a judgment against Sulzberger & Sons Company on account of personal injuries received while in its employ. The defendant appeals. The evidence tended to show these facts: The plaintiff’s duties required him to overhaul hams while in the process of pickling. This involved changing them from one hogshead or vat to another. The vats were arranged in double rows — one row on top of the other — . in a room about 100 feet square. Each vat was three feet and seven inches high, and three feet five in diameter, weighing about 300 pounds, and holding about 1400 pounds of hams, besides the brine poured over them. The plaintiff was engaged in removing one of the upper vats. He undertook to shift it from the top of two other vats to a truck of the same height, and in so doing fell and received the injuries on which he based his action. The petition alleged various forms of negligence, including lack of light, insufficient help, projecting nails on the vat, and worn-out flooring, made slippery by water and grease. In answer to a question requiring them to state fully of what the defendant’s negligence consisted, the jury answered: “Insufficient light.” This excludes other forms of negligence, and the judgment must be reversed unless it can be sustained upon that theory. (Sugar Co. v. Riley, 50 Kan. 401, 406, 31 Pac. 1090; Plummer v. Railway Co., 86 Kan. 744, 745, 121 Pac. 906; Hayden v. Railway Co., 87 Kan. 438, 124 Pac. 165.) The plaintiff contends that the question was one that ought not to have been submitted, under the rule that the jury should not be cross-examined by questions relating to matters of evidence. (Madison v. Railway Co., 88 Kan. 784, 129 Pac. 1157.) This, however, was a fair question, relating to one of the ultimate and vital issues of the case. In saying that the negli gence of the defendant consisted in failing to furnish sufficient light, the jury must be deemed to say that their verdict is not based upon any other form of negligence. The two principal questions upon which the case turns are: (1) Was there any evidence that the deficient light was the proximate cause of the plaintiff’s injury? and (2) if so, must the plaintiff be regarded as having assumed the risk resulting from that deficiency ? The plaintiff did not in so many words say that his fall was caused by the want of light. He testified that but one electric light was supplied, to light the place where he was at work, and this was fifty feet away; that there were sockets for others, but they were not in use; that he was furnished a coal-oil lantern, which he hung near where he was working; that the floor was wet and greasy and that there were holes in it. He gave his testimony through an interpreter, who rendered his answers sometimes in the third and sometimes in the first person. Substantially all the evidence on the subject of the manner of his injury is contained in these extracts from the record: “Q. Show us there how you did it, used the truck, tell how you did it. A. He was pushing that way on tii© truck “Q. Edging it off that way? A. Yes, sir. “Q. What happened when you got it out that way? A. He said that is the way it started in on the truck (witness here illustrates), like that the way he is showing you, then he could not push it any further, then that truck backed this way and that fell over, then that hurt him right on the side. “Q. What caused you to fall? A. There was because of that — because when the truck went back then the truck hit him and he fell right over onto the barrel. “Q. What made you fall over ? A. Because his foot slipped. “Q. Tell the jury whether or not you could see the floor and see all of those things at the time you were working there. A. He said he couldn’t see nothing along there, all round, just what he seen from the light that was on the barrel. “Q. Tell the jury whether or not you saw that fat and saw those holes down there under where you were standing. A. He said it was too dark to see over. “Q. At the time of the accident did you step on a piece of fat that caused you to slip? A. I could not tell, because when I was moving those vessels my foot slipped and then I fell. “Q. Your foot slipped on the floor, did it? A. When the truck slipped back and the vat moved and my foot slipped, then I fell. “Q. Was the floor slippery at the place where you were standing at the time of the accident? A. It was pretty dark and I could not see everything there, be: cause it was wet and damp.” We conclude that this evidence is sufficient to justify a finding that the plaintiff’s fall was caused by insufficient light. The precise way in which the accident occurred is not clear, but there is room for the inference that a better light would have enabled the plaintiff to secure a firmer footing, and to move the vat in such a manner as to retain a surer balance. The plaintiff had worked for seven years under substantially the same conditions. He testified that he had complained of the absence of light and of the other matters referred to in the petition, and that he had been promised that changes should be made. On cross-examination he said that these complaints and promises were made on every day for seven years. It is argued that the defense of assumption of risk can not be defeated by a showing of a promise to repair, the performance of which was so long deferred. The jury were not required to take literally the statements concerning the period over which the complaints extended, especially in view of the manifest difficulty the plaintiff had in comprehending the questions asked and in making his answers intelligible. But apart from this consideration we think the defense of assumed risk was not conclusively-established. In order that a recovery shall be defeated upon that ground the plaintiff must not only have known of the existing conditions — he must also have realized and appreciated the danger that resulted from them. (26 Cyc. 1199.) This is not necessarily established by the fact that he made complaint; in doing so he may have had in mind merely the inconvenience that resulted from the want of additional lights. The matter of making the place safe to work in was not his problem. He was not required to take notice of any but the most obvious dangers. But much more than this was required of the employing company. It was under an obligation to consider carefully whether existing conditions involved any unnecessary danger— to use all reasonable care to see that the place was made safe, not only with respect to apparent risks, but also with respect to any that were latent. {King v. King, 79 Kan. 584, 100 Pac. 508.) It can not be said as a matter of law either that the danger resulting from insufficient light was so obvious that the plaintiff must have known of it, or that it was so remote that the defendant could not be charged with knowledge of it. Both questions were for the jury. Objection was made to the testimony of a physician concerning the plaintiff’s condition on the ground that it was founded in part on the subject’s own statements. The record as a whole, however, seems to indicate that this was not the case. Complaint is made of the restriction of the cross-examination of the plaintiff with respect to the use of benches in place of the trucks some years before. We think no substantial prejudice is shown in this connection. The petition alleged that the projecting nails from the lower hoops of the vat caught upon the truck, causing it to move, and thereby occasioned the accident. It is argued that no recovery could be had except upon proof of this fact. The petition also alleged generally that the injury happened by reason of all the acts of negligence set out. We think no fatal variance is shown. In one place in the charge it was said that it was the duty of the defendant to furnish the plaintiff a reasonably safe place in which to work. The defendant thinks this exacted too high a standard of diligence. If the instruction was not technically accurate it was not prejudicial. (Kamera v. Boiler Works, 82 Kan. 432, 108 Pac. 806; Reynolds v. Mining Co., 90 Kan. 208, 133 Pac. 844.) Complaint is' made of the failure of the court to require more definite answers to special interrogatories submitted to the jury, to which they replied: “We do not know.” No request on the subject was made at the time, the defendant’s counsel not being present. The answers being equivalent to a simple negative there was no occasion for the court to send the jury back on its own motion. The jury were told that in certain circumstances the plaintiff would be regarded as having assumed the “ordinary” risks of his employment, and could not recover for any injury resulting therefrom. The use of the word “ordinary” is complained of, but we think it was not misleading under the facts of this case. Among other issues submitted was the question whether nails projected from the barrel and caught on the truck. This is objected to on the ground that there was no evidence of any such projecting nails. One witness, however, testified that some of the vats had loose brads or nails. The matter is of the less importance because the jury rested the verdict upon negligence in failing to provide more light. The judgment is affirmed. Porter, J., dissents.	[ -80, -4, 93, -99, 26, 96, 58, -36, 117, -123, -89, -45, 111, -41, 5, 107, -15, 125, 80, 43, -34, -93, 3, 11, -42, -69, -80, -59, -7, 106, -28, 86, 76, 112, -54, -43, -26, -118, -63, 92, -56, 4, 40, -31, 121, 16, 120, -8, -26, 67, 49, 28, -29, 44, 29, -57, 75, 56, 43, 61, -15, -8, -94, 13, 79, 18, -77, 38, -100, 103, -40, 44, -120, 49, 8, -24, 112, -74, -126, 116, 3, -83, -124, -30, 98, 48, 29, -27, -4, -104, 47, 126, -115, -89, -112, 8, 67, 47, -66, -99, 96, 22, 14, 124, -18, 25, 91, 104, -121, -122, -76, -77, -113, 117, 28, -14, -17, -121, 48, 113, -52, -72, 92, 5, 91, 27, -114, -106 ]
Opinion by Strang, C.: In May, 1883, the Pittsburg • Coal Company was a corporation doing business in Crawford county, Kansas. At that time it was heavily in debt and very greatly embarrassed, so much so that it was likely to go into the hands of a receiver. The stock of the company consisted of 2,000 shares of $100 each, and was owned principally by C. Wood Davis, R. G. Rombauer, and James Patmor and wife. The holdings of Davis, Rombauer and Patmor (including that of his wife), were about equal. These parties were all anxious to sell out, as it had become manifest to them that they could not carry the business of the company along, and to sell out was the only means whereby they could save anything to themselves, and also get rid of a very heavy debt, amounting to nearly $60,000. Rombauer was the secretary and treasurer of the company, and the negotiation of a sale seems to have been left principally to him. He finally arranged to sell two.-thirds of the stock to Col. E. H. Brown. Upon the basis of the liabilities of the company being $53,000, Brown was to pay $24,000 for two-thirds of the stock. If the liabilities exceeded $53,000, such excess was to be deducted from the $24,000 to be paid by Brown. The liabilities were found to amount to about $59,000, and the sum paid by Brown was something like $20,000. Rombauer, plaintiff below, claims that Brown would not purchase the Davis and Patmor stock, unless he (Rombauer) would retain his stock and remain a member of the company and in charge of its business. He also claims that he reported the sale, with its condition, to Davis and Patmor, and told them he could not consent to the arrangement to hold his stock and remain in, unless he was protected, because he was afraid he would be frozen out and get nothing for his stock ; and that Davis and Patmor then agreed that, if he would go ahead and close the sale on the terms and conditions reported, and let them have the proceeds of the present sale, that whenever he could sell his stock, if it did not bring as much as they were getting for theirs, they would make up to him the deficiency, so that he should receive one-third of what the whole stock sold for. Rombauer says he assented to that and closed the trade; that Davis and Patmor received something over $10,000 each for their stock; that he sold his stock as soon as he could, and for the best price he could get for it — $7,000; that thereupon Davis and Patmor each owed him $1,035 on said agreement. Patmor did not pay, and this suit was brought to recover that amount and accrued interest. The defendant below demurred to the petition in the case, which was overruled. He then answered by a general denial, and also pleaded the statute of limitations. A reply was filed, containing a general denial. The case was tried by the court and a jury January 12, Í888. The defendant below demurred to the evidence of the plaintiff, which was overruled. The jury returned a general verdict for the plaintiff below for $1,173.68, and also made the following special findings: “The defendant asks the court to require the jury to answer the following questions, in case their general verdict is in favor of the plaintiff: “ 1. Did the plaintiff and the defendant enter into an agreement of the kind and character set out in the plaintiff’s petition? Ans. Yes. “2. Was said agreement reduced to writing, or did it rest in parol? A. In parol. “3. When and where was said agreement entered into? A. In May, 1883, at Pittsburg, Kansas. “4. Who was present when said agreement was entered into? A. C. W. Davis. “ 5. Was the Pittsburg Coal Company in great difficulties financially? A. Yes. “6. Was its stock of little practicable value? A. Yes. “7. What was the value of the Pittsburg Coal Company’s property on May 7, 1883? A. From $75,000 to $85,000. “8. What was the total amount of the said Pittsburg Coal Company’s indebtedness on May 7,1883? A. Between $55,000 and $60,000. “ 9. In what sum do you find the assets to exceed the liabilities of said coal company on May 7, 1883? A. From $25,000 to $35,000. “10. What moved the plaintiff to remain in said coal company after May 7, 1883? What was the cause of his doing so? A. To protect his interest. “11. Was the contract between the plaintiff and defendant (if any was made) entered into prior to or after May 7,1883? A. Prior. “12. On what day did the plaintiff sell to E. H. Brown the holding of the stock of Patmor and Davis? A. On or about May 7, 1883. “13. When were Patmor and Davis to pay any sum of money on said contract? A. No time set. “14. Was there any particular time when they or either of them was to pay said money or any part thereof? A. Yes; when plaintiff sold his interest. “15. Was it or any part thereof to be paid within one year from the day on which the Patmor and Davis stock was sold to E. H. Brown? [Refused, and excepted to by the defendant.] “16. Was it to be paid at some remote and indefinite time? A. Yes. “17. At and after the time the Davis and Patmor stock was sold to Brown, did plaintiff hold the same position in the Pitts-burg Coal Company that he had theretofore held? A. Yes.” . Motion for new trial was made, and overruled. Motion to set aside the special findings of the jury overruled. The plaintiff in error contends here that the demurrer to the petition in the court below should have been'sustained. He says the petition is defective in not stating that the stock was not, at any time prior to February 25,1886, of any greater value than $7,000. Under the contract alleged and proved to the satisfaction of the jury, we do not think it was necessary to allege that the stock of Rombauer was not, at any time prior to his sale of the same to Brown, of a greater value than $7,000. As we understand the contract, and as the jury evidently understood it, Rombauer was to get out as soon as he could, and for the best price he could, exercising his own judgment in so doing. He was not bound to wait for a rise in the value of the stock, nor was he compelled to accept the first offer made him therefor if he thought he could do better. He was simply bound to act in good. faith with Davis and Patmor in selling out, and there is no allegation of any fraud or want of good faith on his part. The evidence shows, however, that in point of fact he sold at the first and only opportunity he had to sell. That opportunity did not occur for eighteen months after the sale of the Davis and Patmor stock,’ and then he sold to Brown, the only person likely to want to buy. It is argued that, at the time Rombauer sold his stock to Brown, the stock was worth more than it was when the Davis and Patmor stock was sold, and that he accepted a less price for his than he got for theirs. It must be remembered, however, that in the meantime, during the interval between the sales of stock, the Pittsburg Coal Company had been reorganized, and became the Pittsburg & Midway Coal Company; and there is nothing in the evidence to show how Rombauer was protected, so far as his interest in the old company was concerned, when the reorganization took place. His stock may have been affected adversely by such reorganization, and been worth less than before. His interest may have been so affected that he thought the best thing he could do was to sell for what he could get. It is said that the petition failed to state that Rombauer had eomplied with the terms of the contract himself. While the petition does not in so many words contain such an allegation, it yet shows that he had done what was required of him. He was to sell the stock of Davis and Patmor, retain his, and remain in the company for the time, and sell out as soon as he could, and the best he could. The petition alleges these things. We think the demurrer was properly overruled. The demurrer to the evidence was also properly overruled. The plaintiff had sustained his allegation in relation to the agreement by his own and Davis’s evidence; had proved the sale of the Davis and Patmor stock and the amount realized therefor, and thus shown that under the agreement Patmor was indebted to him in the sum claimed. Was the plaintiff below entitled to recover, under the evidence? Eor the purpose of arguing that he was not, counsel for plaintiff in error says the contract that Patmor is alleged to have made is nothing short of marvelous. We do not think there is anything marvelous or wonderful about the contract. It was not very definite in some of its provisions, and depended somewhat more than contracts usually do upon the honor of the contracting parties to be carried out in good faith. But the contracting parties were friends and partners in business, and evidently had a business confidence in each other; and when this is taken into consideration, together with the nature and character of the transaction and the situation of the parties at the time with respect to their business, the contract appears natural enough. But, if there was anything marvelous about it, it did not entirely grow out of Mr. Patmor’s credulity. It is no more marvelous that he should have made such a contract with Rombauer than that Rombauer should have made such a contract with him. According to the evidence, Patmor got over $10,000 for what he expressed an emphatic willingness to sell for $4,000, if he could get out of the business. It follows, then, that if Rombauer had got nothing for his stock, and Davis and Patmor still performed the contract Rombauer says they made with him, they would each realize some $2,000 more than the amount they were willing to sell for; so it was a winning deal for them in any event. But then the question is not whether the contract was a marvelous one or not, but was there a contract of the kind Eombauer avers was made between them? The jury have settled this question for all parties. They return a general verdict for the plaintiff, and support it with a special finding directly in point. The first question asked, and answered by the jury, reads as follows: “Did the plaintiff and defendant enter into an agreement of the kind and character set out in the plaintiff’s petition?” To which question the jury say “Yes.” The jury also settled another question that is discussed by counsel for plaintiff in error. They say, in answer to the 11th question, that the agreement entered into between plaintiff and defendant, set out in the petition in the lower court, was made prior to May 7, 1883, and therefore prior to the sale by Eombauer of the stock of Davis and Patmor to Brown, for in answer to the 12th finding they say the sale to Brown was on the 7th of May, 1883. We think, under the whole evidence, the sale to Brown and the agreement between plaintiff and defendant were practically contemporaneous. We think the court below was right in its instructions touching the question of the statute of limitations. The statute commenced to run from the time when the cause of action accrued in favor of Eombauer, which was upon the sale of his stock to Brown, and would run in three years. It had not run at the commencement of this suit. We have read the instructions through, and, taken as a whole, we think they are fair and good law. It is true there is a good deal of them, but then it is better to have some law to spare than to have too little, if the surplus is innocent of harm, as we think it was in this case. It is recommended that the judgment of the district court be affirmed. By the Court: It is so ordered. All the Justices concurring.	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Per Curiam: The appellant objects to the taxation of the costs of the counter-abstract, amounting to $15. Upon a careful examination the court concludes that the substance of the matter set out in the counter-abstract was contained in the abstract. The objection is therefore allowed, and this item will not be taxed to the appellant.	[ -14, -16, -35, -68, -86, 98, 123, -104, 65, 33, 71, 19, -17, 18, -108, 115, -16, 57, 113, 122, -34, -73, 119, 65, -2, -13, -77, -47, 61, -1, -25, -10, 76, -3, -54, -43, 67, -125, -23, -44, -58, 9, -83, 77, 97, 96, 48, 107, 112, 7, 49, -41, -85, 40, 24, -63, 9, 44, 121, 33, -63, -8, -126, 9, -33, 30, -96, 55, -99, -61, -40, 108, -108, -71, 2, -32, 56, -90, 6, 84, 11, -7, -128, 104, -30, 0, -87, -1, 28, -88, 62, -40, 47, -91, -13, 24, 90, 105, -73, 63, 116, 96, -121, 126, -8, 93, 31, 108, 27, -114, -48, -77, -65, 104, -116, -126, -18, -77, 16, 81, -121, 78, 92, -105, 62, -109, -122, -44 ]
The opinion of the. court was delivered by Smith, J.: In the petition the appellees — about seventy insurance companies, doing business in the state —allege that in 1909, and after the insurance act took effect, they severally filed with the superintendent of insurance of the state their general basis schedule of rates, in compliance with the provisions of the statute, and that such rates were just and reasonable and as low as the business could be written at a very small profit; that thereafter and on the 19th day of August, 1909, the then superintendent of insurance, without .giving the petitioners or any other insurance company :any notice whatever, and in violation of the statute requiring such notice, and without any hearing or opportunity therefor, issued an order to the petitioners and all other fire insurance companies doing business in the state that the rates on mercantile business and all mercantile classes of business in the state were reduced 12 per cent from the rates so filed, such reduction to take effect September 1, 1909; that notwithstanding the protest of the petitioners the order was issued and a demand that a rehearing be given them was refused and the superintendent refused to change the order. The petition further alleges,' in substance, that the appellees complied with the order of the superintendent of insurance, and, after giving detailed accounts of the business and percentages, alleges that the aggregate loss to fifty companies, appellees, for the years 1910 and 1911 doing business in compliance with the order was $384,802.22, and that the remaining companies lost a proportionate amount; that on February 23, 1910, the then superintendent of insurance, without notice to the petitioners or other insurance companies and without giving such companies any opportunity to be heard, made and issued an order directing the reduction of rates of fire insurance on dwellings, private barns, etc., filed by the petitioners and other insurance companies, on an average of about 14 per cent below the rates filed by the companies; that, in substance, the appellees and other insurance companies doing business complied with the order for four years, from 1909 to 1912, inclusive, and in so doing have met a loss of over one and one-half million dollars; and that the fire losses during this period were normal; and further, that the orders of the superintendent of insurance are now and ever since they were made have been confiscatory of petitioners’ property; that by the effect of such orders the petitioners are being deprived of their property without due process of law. Further, the petitioners allege that prior to the commencement of this action they applied to the appellant, Ike S. Lewis, as superintendent of insurance of the state, for a revocation of the orders, and made a showing to such superintendent that the rates of insurance as fixed under these orders were confiscatory, and showed to the superintendent the losses they had sustained as aforesaid during the time they had complied with such orders, all of which facts were well known to such superintendent for the reason that he had and now has the returns made under the law by all the petitioners as well as' all other insurance companies doing business in the state of their premium receipts, losses, etc. And further, the appellees demanded of the appellant that he perform his duty under the statute and direct the companies to publish and file a higher rate of insurance which shall be commensurate with the character of the risk and shall be reasonable; that such superintendent of insurance refused so to do, and refused to grant petitioners any relief whatever or to allow them to file a higher schedule of rates as was his duty to do. Petitioners further allege that they are without remedy in the premises save in a court of equity and pray that the superintendent of insurance be required to answer and that a full hearing be had in the matter, and that the order of former superintendent of insurance Barnes be set aside and the rates set forth in the schedules filed by the petitioners be restored, and for such other and further relief as they may be entitled to. The petition alleges, in substance, that the orders referred to, made by the former superintendent of insurance, were in violation of section 4273 of the General Statutes of 1909, which provides in part as follows : “The superintendent of insurance shall not make any regulation or order without giving the insurance company concerned reasonable notice thereof and an opportunity to appear and be heard in respect to the same, and if any insurance company or any other person, city or municipality which shall be interested in said order shall be dissatisfied with any regulation, order or rate adopted by said superintendent of insurance, said party or parties shall have the right within thirty days after the making of said regulation or order, to bring an action against said superintendent of insurance in any district court of the state of Kansas, to have such regulation or order vacated.” We think the thirty-day provision made in the statute is not a statute of limitations, at least applicable to the situation as presented in the petition. Whether any of the losses alleged to have been sustained occurred within thirty days after the making and entering of the orders complained of does not appear. The petition sets forth a state of facts which the demurrer thereto admits to be true, and which, if true,- compels the insurance companies to cease doing business in the state of Kansas, and will deprive property owners therein from recovery of loss by fire or that the companies continue such business at a loss. It is alleged, in effect, that before appealing to the courts the insurance companies appealed to the superintendent of insurance for a rehearing, and made the showing before referred to, but they alleged that all the means of information were already in the full possession of the superintendent of insurance, and that upon such application the superintendent denied the insurance companies any remedy whatever, including a rehearing. Moreover, the conditions since 1909 may have changed, and a rate that was reasonable in 1909 may be unreasonable now, or a rate that was unreasonble then may be reasonable now. The hearing in the courts should be based upon conditions as may be up to the time of filing the petition. It is urged that their demurrer on the ground of a misjoinder of parties plaintiff should have been sustained ; that as to the rates to be charged for insurance each insurance company stands alone, and that the order reducing the schedules of rates filed affected the insurance companies separately and not collectively; that one company was not interested in the rate at which another was limited in writing insurance. . In one sense this is true; in another it is not. Practically, if the rates were reduced as to a part of the companies doing business in the state, and not reduced as to the remainder, or reduced as to all save one, the companies, or such one whose rates were not reduced by the order, would be compelled to meet competition— to write at the reduced rates or to quit business in the state. Since the superintendent by the order compelled a uniform cut of twelve per cent upon one class of risks and fourteen per cent on another class, it is fair to assume that the schedules of rates filed were uniform before the order was made, and in his judgment should be uniform thereafter. It is held that each appellee had such an interest in the action as is contemplated by section 34 of the code. Again, it is contended that the district court of Leavenworth county had jurisdiction of the subject matter of this action there pending, in which the state of Kansas is plaintiff and a part of the plaintiffs are defendants, and that the appellees should have sought their remedy therein. That there is a diversity of both parties plaintiff and defendant is apparent from the titles of the two actions. The purpose of the state in that case is to enjoin such of the appellees as are parties thereto from combining to unlawfully raise rates of insurance, and from unlawfully raising such rates. On the other hand, the purpose of this action is to have a hearing as to whether the rates of insurance fixed by the order of the superintendent is compensatory, and, if not so, to have compensatory rates established in the manner prescribed by the statute. The order overruling the demurrer is affirmed, and the case is remanded for further proceedings. Burch, J., dissenting.	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The opinion of the court was delivered by Smith, J.: This action was brought by the school district to recover on the bond of the bonding company which insured the performance of the contract on the part of McCurley, the contractor, for the building of an addition to the schoolhouse of the appellee at Ashland. After various motions and amendments to the pleadings were made and ruled upon, the case was tried in the district court to a jury, a motion for new trial made and overruled, and a judgment rendered in favor of the school district and against the bonding company for $2271.70. The bonding company appeals. Many assignments of error are made, but only four are urged in argument. In fact the appellant seems to argue all of these assignments of error together. To save space we will refer to the contract between the school district and the contractor as the building contract, and to the bond given by the appellant as the insurance contract. It is urged that one of the provisions of the building contract was that the building should be completed by November 15, 1908. The bond provided that no liability should attach to the surety unless, in the event of any default on the part of the principal, the appellee should immediately, upon knowledge thereof and not later than thirty days after such default, deliver to the bonding company, at its office in Boston, written notice thereof. It is conceded that the building contract was not completed November 15, 1908, and that no notice thereof was given to the bonding company within the time prescribed. On the part of the appellant it is claimed that this is a complete bar to the • appellee’s right of recovery. On the part of the appellee it is contended that no damage or loss is shown to have occurred to appellant by reason of the failure to give the notice, and hence the failure to give notice thereof constitutes no defense whatever to the action. On the trial the jury found that the building was fully completed February 20, 1909, about three months after the time specified in thé contract. The appellee, conceding the facts upon which the contention is made, alleges that the bonding company suffered nothing by reason of the failure of notice, and this is the principal question in the case — whether the notice was so far a condition precedent to the right of the school district to recover as to defeat its action, or whether, if it appears that the insurer was not injured by lack of notice, it is still liable to pay. A marked distinction is recognized by many of the courts as to the application of the rule as between contracts of an accommodation surety and the contract of a paid surety. As to the contracts of an accommodation surety, made dependent upon a condition precedent, the courts all agree that the strict letter of the contract will be enforced; but as to the contract of a paid surety, many of the courts, especially in the later decisions, inquire whether the surety was injured by the default of the condition, and if so, they enforce it only to the extent of the injury. In Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544, it was held that the rule that sureties are favorites of the law does not apply to corporations engaged in the business of furnishing bonds for profit. In support of its contention the appellant cites Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991, in which it was held that the failure of an insured to give notice of the loss or damage by fire within sixty days after a loss has occurred, according to the contract, debarred the right of recovery. Also, Insurance Co. v. Russell, 65 Kan. 374, 69 Pac. 345, which held valid a stipulation in a fire insurance policy that the policy should become void if the premises should become vacant without the consent of the company indorsed on the policy. Also, Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac. 611, in which it was held that the failure to keep the books and invoices of the insured securely locked in a fire-proof safe, as provided in the policy, barred an action thereon. The reasons for these decisions, and others of like character, are obvious. In the Thorp case the failure to give the notice interfered with the right of the company to secure evidence of the character and extent of the loss. In the Russell case' the vacancy presumably increased the hazard of loss and practically furnished a motive on the part of the insured to have a fire occur. The case of Fire Association v. Taylor, 76 Kan. 392, 91 Pac. 1070, although containing an expression which seems pertinent here, is not so in fact. The question there was the interpretation of an ambiguous contract. The case of The Y. M. C. A. v. Ritter, 90 Kan. 332, 133 Pac. 894, is also cited by the appellant, but a rehearing has been granted in that case and it is still pending. Cases, however, are not wanting and some are cited, notably U. S. Fidelity & Guaranty Co. v. Rice, 154 Fed. 206, and Knight & Jillson Co. v. Castle, 172 Ind. 97, 87 N. E. 976, 27 L. R. A., n. s., 573, which are much like the case at bar. In these cases it was held, in substance, that the parties have the right by contract to make such conditions precedent as they may agree upon, and such agreements are enforceable in the courts. There are, on the other hand, numerous authorities that a surety for hire, an insurer (as the appellant is in this case), is not entitled to the rule of strictissimi juris. In Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, it was said: “The question involved is whether the ordinary rule that exonerates the guarantor, in case the time fixed for the performance of the contract by the principal be extended, applies to a bond of this kind executed by a Guaranty Company, not only for a faithful performance of the original contract, but for the payment of the debts of the principal obligor to third parties. . . . The rule of strictissimi juris is a stringent one, and is liable at times to work a practical injustice. It is one which ought not to be extended to contracts not within the reason of the rule, particularly when the bond is underwritten by a corporation, which has undertaken for a profit to insure the obligee against a failure of performance on the part of the principal obligor.” (pp. 423, 426.) Whatever may be the rule elsewhere, the latter rule is well settled in this state. (See Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544; Medical Co. v. Hamm, 89 Kan. 138,130 Pac. 650; Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563; The State v. Construction Co., 91 Kan. 74, 136 Pac. 905.) In Lumber Co. v. Douglas, supra, it was said: “The law does not have the same solicitude for corporations engaged in giving indemnity bonds for profit as it does for the individual surety who voluntarily undertakes to answer for the obligations of another. Although calling themselves sureties, such corporations, are in fact insurers, and in determining their rights, and liabilities the rules peculiar to suretyship do not apply.” (p 320.) It did not appear that any damage or loss was sustained by reason of the failure to complete the building within the time specified in the contract, which the notice would have enabled .it to avoid. Again, appellant contends, “the court erred in overruling the demurrer to plaintiff’s evidence; erred in refusing to direct a verdict in favor of defendant at the close of all the evidence, as requested by the defendant ,- erred in overruling defendant’s motion for judgment on the findings, and erred in rendering a judgment against: the defendant.” The argument in support of this assignment is practically the same as we have already* considered, viz., “it is so nominated in the bond.” We are unable to see that the appellant was prejudiced by the admission in evidence of the letters from the attorney for appellee to appellant, or in the instructions given to the jury. The latter objection is in effect that, the appellee haying failed to comply with the letter of the bond in the matter of notice, damages to appellant should be presumed in the absence of evidence thereof, which claim we can not sustain. The breach of a condition precedent in a bond given by an insurer for pay will not relieve the insurer from liability for any loss for which he would otherwise be liable unless such breach contributed to the loss. The judgment is affirmed.	[ -46, 124, -36, -84, -102, -32, 122, -102, -23, -96, -96, 83, -67, 71, -123, 99, -123, 57, 81, 104, 86, -13, 19, 115, -42, -13, 115, -43, -79, -36, 116, -34, 76, 52, -54, -97, -90, -54, -59, -104, -50, -123, -88, -19, -39, 98, 56, 123, 48, 78, 33, -34, -77, 36, 24, 71, 108, 43, 107, -71, 64, -15, -104, -123, 125, 7, -79, 87, -98, -57, 104, 8, -104, 49, -128, -24, 114, -26, -58, -12, 105, -119, 8, 96, 98, 0, -11, -33, -40, -104, 38, -74, 45, -90, -109, 24, 43, 4, -65, -99, 113, 16, -121, 122, -25, 69, 91, 108, 3, -117, -14, -93, -49, -24, -102, 7, -10, 26, 34, 112, -52, -88, 94, 97, 59, 27, 79, -100 ]
The opinion of the court was delivered by Burch, J.: The defendant was convicted on the first, second, third and fifth counts of an information charging him with persistent violation of the prohibitory liquor law, and appeals. The first count of the information charged a sale of intoxicating liquor in July, 1913, a former conviction in the district court on December 30, 1905, and former convictions before L. H. Webb, a justice of the peace, on July 7, 1904, December 8, 1904, and April 18, 1905. The verdict and judgment rest on proof of a sale in August, 1912, and proof of all former convictions. The second count charged a sale in July, 1913, and a former conviction in the district court on December 30, 1905. The verdict and judgment rest on proof of a sale in October, 1912, and proof of the former conviction. The third count charged a sale in July, 1913, and a former conviction in the district court on December 30, 1905. The verdict and judgment rest on proof of a sale in July, 1913, and proof of the former conviction. The fifth count charged the keeping of a nuisance in 1913, and a former conviction in the district court on December 30, 1905. The verdict and judgment rest on proof relating in time to July, 1913, and proof of the former conviction. The law under which the defendant was convicted took effect on May 22, 19Í1, and the information was filed in October, 1913. A motion to quash the information was filed on the ground that the kind or kinds of liquor sold and the name or names of the persons to whom the sales were made should have been stated. The motion was overruled. The information must be direct and certain regarding the offense charged. The general liquor law provides, however, that in all prosecutions under it, whether by indictment or otherwise, it shall not- be necessary to state the kind of liquor sold or the name of the person to whom sold, and the persistent-violator act expressly provides that it shall be construed as supplemental to existing legislation. (Laws 1911, ch. 165, § 3.) It is clear, therefore, that the legislature intended that the procedure authorized by the general law should be followed and not abrogated. The preliminary examination will give the defendant notice of the transactions furnishing the basis for the information, and the scope of the investigation at the trial will be limited accordingly. In November, 1911, the defendant was prosecuted as a persistent violator of the prohibitory law, the former conviction charged being that of December 30, 1905. After a trial he was acquitted. This acquittal was interposed as a bar to further prosecution upon the present information. The plea was overruled. The former prosecution related to acts committed in 1911, which, together with the conviction in 1905, it was alleged constituted the defendant a persistent violator. The present prosecution relates to acts committed subsequent to the former acquittal, which, together with the conviction in 1905, it is alleged constitute the defendant a persistent violator. The conviction in 1905 is the only element the two informations have in common. They relate to separate crimes. The issues are not identical. Neither offense includes the other offense. In each information an act which constitutes an indispensable element of the crime is necessary to conviction which is different from any act necessary to conviction under the other. All the evidence necessary to prove the first charge would not establish the second, and all the evidence necessary to prove the second charge would not establish the other. (The State v. Patterson, 66 Kan. 447, 452, 71 Pac. 860.) The doctrine of res judicata does not apply in criminal cases to particular facts in issue, as for example to the conviction in 1905, as it frequently does in civil cases. (2 Van Fleet, Former Adjudication, § 594.) In criminal cases the ultimate test applied in determining the validity of a plea of former conviction or former acquittal is identity of offenses, and it is not decisive that the two offenses may have some material fact in common. “The two offenses are entirely distinct. One is not included in the other — is not a lesser degree of the other. The character of the testimony must be different in each. One fact, that is, ‘shooting,’ may be necessary for conviction under either charge. But something more is necessary in each, than the mere fact of shooting. ... It was said by Lord Denman,' in Regina v. Button, 11 Ad. & Ellis, New Series, 946, ‘The same act may be part of several offenses. The same blow may be the subject of inquiry in consecutive charges of murder and robbery. The acquittal on the first charge is no bar to a second inquiry, where both are charges of felonies; neither ought it to be, when the one charge is of felony, and the other of misdemeanor.’ ” (The State v. Horenman, 16 Kan. 452, 454.) The convictions before the justice of the peace referred to in the first count of the information were proved as alleged. In those cases the defendant pleaded guilty to violations of the club room section of the prohibitory law, and it is said that the convictions were invalid because that section of the law was repealed by a statute passed in 1901. This court has decided otherwise. {In re Manning, 80 Kan. 68, 101 Pac. 464.) It is said that the proof of the various former convictions was insufficient because the complaints in the justice of the peace cases and the information in the district court case were not produced. The docket entries of the justice of the peace and the journal of the district court disclosed not simply convictions, but convictions for violations of the prohibitory law, and under section 2 of the act of 1911 those records were prima facie evidence of former convictions. The jury were properly instructed that they warranted a finding that the defendant was duly convicted of violations of the prohibitory law on the respective dates shown by such records. When instructing the jury with reference to the matter of time the court stated that it would be sufficient if the evidence proved the offenses to have been committed about the time claimed by the state, prior to the filing of the complaint- and after May 22, 1911 (the date on which the act of 1911 took effect). Of course the state could not go further back than two years, except as to the fact of former conviction, but the inadvertent error was perfectly harmless because the proof was in fact confined to the proper period. ■ Some further criticisms of the proceedings are not deemed to be important, and an attack upon the act of 1911 is fully met by the decision in the case of The State v. Adams, 89 Kan. 674, 132 Pac. 171. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Mason, J.: The Scheidel-Western X-Ray Coil Company sued Charles E. Ross in the city court of Wichita upon an account. He filed a bill of particulars, admitting an indebtedness on his part, but setting up a claim against the plaintiff for a greater amount by reason of a machine which he had purchased of it, under a guarantee, having proved to be worthless. The case was taken to the district court where a trial was had upon the same pleadings. The defendant recovered judgment for the amount he claimed, and the plaintiif appeals. It developed that the machine referred to was sold to a partnership of which the defendant was a member. The jury were instructed that he could recover if his partners had assigned to him their rights under the guarantee. The plaintiff contends that the defendant should not have been allowed to recover upon the theory of such an assignment because it was not pleaded. The defendant’s bill of particulars spoke of his having obtained the machine from the plaintiff, while his evidence was that he with three others purchased it, and that these others turned over their interests to him. It does not appear that the plaintiff suffered any prejudice from the variance and we do not regard it as justifying a reversal. One of the rulings complained of was the refusal of the court to make an order that the machine should be returned to the plaintiff upon payment of the judgment. A request for such an order was not made until nearly a year after the judgment was rendered. The defendant’s pleading was drawn on the theory that the machine was worthless and the jury so found, their general verdict, under the instructions, necessarily carrying that implication. The defendant’s attorney in his opening statement indicated a willingness that the machine should be returned. A timely application for its return might have been received with favor, but the motion that was made came too late. The defendant could not reasonably be expected to preserve for so long an interval a machine which had been adjudged to be valueless and for which no earlier demand had been made. In reply to a question whether the “goods” had any value to either party the jury answered — “No; not from the evidence.” It is contended that this answer should have been set aside because there was evidence that the goods were of considerable value. The answer is somewhat ambiguous, but to uphold the general verdict it must be construed as meaning that from all the evidence on the subject the jury concluded that the goods had no value to either party. There was some evidence to support the finding as so interpreted, and it must therefore stand. Instructions were asked to the effect that the defendant’s sole remedy if the machine proved defective was to return it for repairs, and that he did return it and a new contract was made superseding the original guaranty. The evidence on the subject left the facts sufficiently in doubt so that these instructions were rightly refused. In the instruction concerning the assessment of damages a statement was made which in itself would have authorized a recovery in excess of the amount claimed in the defendant’s pleading. But the jury were elsewhere explicitly told that they could not find a verdict beyond that amount, and as they did not do so no prejudice resulted. (Thomas v. Warrensburg, ante, p. 576, 141 Pac. 255.) Among the special questions submitted to the jury was one requiring them to state what amount they allowed the defendant as a counterclaim or set-off. They answered by giving the amount of the general verdict. The defendant’s attorney objected to this and asked that the jury be directed to reconstruct the answer. The plaintiff’s attorney protested against any change. The court suggested that in connection with the general verdict the answer meant that this was the amount they found to be due to the defendant. A juror here interposed by saying that it was a mistake — that the jury had not meant to write it that way. The jury' were polled on the question and each repudiated the answer. They were then permitted to retire and changed the answer to conform to another finding as to the amount of the defendant’s counterclaim. Complaint is made of the remark of the judge in the presence of the jury, and of the allowance of the change in the answer. Upon the whole record it seems clear that the jury misapprehended the question and that the final answer was in accordance with their actual judgment. The judgment is affirmed.	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The opinon of the court was delivered by BENSON, J.: A rehearing was granted in this case upon the effect of the rule referred to in the former opinion. (Thornbro v. Railway Co., 91 Kan. 684, 139 Pac. 410.) The scope of the rehearing was enlarged to a reconsideration of the question whether the deceased, Thornbro, was engaged in interstate commerce when injured. Only that part of the rule alleged to have been violated was given in the former opinion. The entire rule is: “Employees must not remove any of the appliances of an engine or cars for convenience in switching, endangering the safety of themselves or others; coupling apparatus must be examined and if out of order must not attempt to make coupling. They are warned not to get on the front or rear of an engine or the end of a car as it approaches them, or to go between cars in motion to uncouple, open, close or arrange knuckles of couplers or follow other dangerous practices.” The rule was set out in the answer, followed by an allegation: “That disobeying and violating said rule the said J. N. Thornbro . . . carelessly and negligently went between the cars of said train while the same were in motion for the purpose of attempting to uncouple said cars, . . . and by reason of the violation on his part of said rule, the injuries which resulted in his death were caused-and occasioned.” The plaintiff pleaded a waiver of the rule. Competent evidence having been offered tending to prove the waiver, the district court instructed the jury that: “If the said Thornbro wilfully disobeyed the defendant’s rule introduced in evidence, and thereby caused his own death, plaintiff can not recover herein. But if, to the knowledge of said Thornbro, the rule in question was and had been disregarded with the knowledge of those superior in authority for such a length of time and to such an extent as to show a tacit or express consent by the defendant to such disregard of such rule, then the mere fact that Thornbro may have likewise disregarded the rule would not of itself prevent the plaintiff’s recovery herein.” Upon this issue the jury in special findings found that the defendant had not enforced but had disregarded the rule prior to Thornbro’s death. The contention of the defendant is that the evidence of a waiver of the rule concerns only that part of it which forbids employees to go between cars while in motion to do their work. It is asserted that: “There is not a syllable of evidence that the rule was ever disregarded so far as it required employees to examine coupling apparatus and if the same was out of order not to attempt to make coupling.” It is argued that the rule covers different subjects, and that a waiver of the part prohibiting employees from going between cars does not impair the force of the part requiring an examination of the apparatus. Counsel say: “The portion of the rule relative to coupling apparatus and its inspection remains as effective as ever.” It should be observed that although the defendant pleaded the rule in its entirety, the only violation alleged was that Thornbro went between the cars while in motion. There is no allegation of any failure to examine or inspect, if that should be considered separate and apart from the duty to refrain from going between cars. But these two parts of the rule are so interwoven in their obligations, as well as in the terms in which they are expressed, that it is difficult to wholly disassociate them. No good reason is apparent for going between the cars unless it should be found or believed that the coupling apparatus could not otherwise be used. Proof that employees habitually went between the cars to couple and uncouple them to the knowledge of the company implied a waiver of the requirement of examination, as well as a waiver of the prohibition, if as a practical matter there can be any substantial separation between the two. It is unnecessary, however, to discuss this distinction further, either with respect to the language of the rule or the pleading upon this issue, for the evidence tended to prove a waiver of the rule, not only in respect to going between the cars, but in respect to the examination of the coupling also. A switchman who had been in the employ of the defendant a considerable time testified that he knew of the custom of brakemen on that road. Asked to state what that custom was, he said: “Well, where your cut-off levers are disconnected or broken or bent, it is customary that a man will jump in between them and get the opposite lever. “If there is no opposite lever the cars are not to be uncoupled. When the lever failed to work, it was the custom during the time I worked for the Orient for brakemen to go in between slow-moving cars and use the hand to pull the pin or open the knuckle in coupling or uncoupling. I have seen this happen on the Orient road since I have been employed by the Frisco. The Frisco and Orient tracks at Wichita are consolidated into one. The Orient uses the Frisco yards. It is customary to go between slow-moving cars to uncouple them when they could not be easily uncoupled by use of the pin lever as it was easier to do this than to crawl under them or over to the other side. I have gone between cars under such circumstances in the presence of my superior officials in the yards at Wichita, Kansas, in 1909, while I was working for the Orient. I have seen brakemen and conductors do the same and I was never reprimanded, nor did I know of such superior officials reprimanding such brakemen or conductors for such action.” There was other testimony of the same import. It appears that the custom was to enter between the cars after ascertaining that the lever would not work. Whatever examination the rule requires must necessarily be done hurriedly as an incident of the principal duty to make the coupling. The act of going between the cars directly follows the examination. These acts are not divorced in the testimony, nor in practical operation. It must also be remembered that the jury found that the rule and not a particular part of it had been waived. It is further contended that no actionable negligence on the part of the defendant is shown, because the only negligence alleged or found is the use of a car with a defective coupler, and the only person having knowledge of the defect and making use of the defective appliance was Thornbro himself. It is insisted that he was made the company’s inspector of that car by the rule referred to, and that there was no negligence of the company except his own. In this situation the defendant invokes the principle that when the only negligence shown is that of the employee he can not recover, although the company might be liable therefor to third persons. Many decisions are referred to in support of this proposition, but it is not necessary to cite them here. The car in question was delivered by another company to the defendant upon its house track at Custer the day preceding the death of Thornbro. The evidence does not show whether any employee or agent of the defendant handled or performed any duty respecting it before it was switched to the main track the next day to be placed in the train. While it is shown that Thornbro turned the switch for picking up this car, there is no evidence that he handled it until he made the fatal attempt to uncouple- it after it was upon the main track. The following findings, among others, were returned by the jury: “15. Was the Rock Island box car coupled to the car of chats before the train on which Thornbro was brakeman moved it? Answer. Yes. “16. If you answer the last question in the affirmative, then, who coupled the Rock Island box car to the car of chats? Answer. No evidence. “17. Were the Rock Island box car and the car of chats moved out onto the main line at Custer City for the purpose of putting the car of chats into the train upon which Thornbro was brakeman? Answer. Yes. “18. Did any employee of the defendant company go about the car of chats before it was moved out on the main line to be put into the train? If so, what employee or employees? Answer. No evidence.” . Custer is a small station where connection is made with the tracks of the St. Louis & San Francisco Railway Company. In fact, the track used by the defendant for a short distance east and west of that place, over which the defendant operates its trains in state and interstate traffic, belongs to that company. No inspector is employed at that station. The defendant states that one object of the rule is to provide for an inspection in just such cases, that this is a reasonable requirement, and that in no other manner could it protect itself from fine, and its employees from injury. It will be seen that this construction of the rule makes every brakeman an inspector. It is doubtful whether such a broad meaning should be given to the expression “coupling apparatus must be examined, and if out of order must not attempt to make coupling.” This language must be interpreted in the light of the general duties of employees, the particular work in which they may be engaged at the time, the opportunities afforded for examination, and the sense in which the language should be understood by men engaged in such work. It is obvious that the contemplated examination intended by the rule is not an inspection, as that term is ordinarily used with respect to the sufficiency of cars and appliances, although a failure to perform the duty required might, in a proper case, be contributory negligence where that defense is available. Like other similar rules, however, it may be waived, as it appears to have been in this instance, as shown not only by the findings referred to but by the general verdict, the question of waiver being one of the issues submitted to the jury. The use of the car in-its defective condition was in violation of the federal safety appliance act, which imposes a certain obligation defined by the statute and aifirmed by federal decisions. (Delk v. St. Louis & San Francisco R. R., 220 U. S. 580; C., B. & Q. Ry. v. United States, 220 U. S. 559, 576; Chicago Junction Ry. Co. v. King, 169 Fed. 372.) This obligation of the statute is made more emphatic by section 5 of the employers’ liability act of 1908, which provides: “That any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this Act, shall to that extent be void.” (Part 1, 35 U. S. Stat. at Large, p. 65, ch. 149, § 5.) We are now to reconsider the remaining important question whether Thornbro was engaged in interstate commerce when killed. Among the cases cited in the former opinion in support of the conclusion that he was so engaged is Behrens v. Illinois Cent. R. Co., 192 Fed. 581. That decision has been reversed since our opinion was written. (Ill. Cent. R. R. v. Behrens, 233 U. S. 473, 34 Sup. Ct. Rep. 646,) The decision of the supreme court in that case, however, does not necessarily determine the question arising upon the facts of this case. Behrens was working with a crew on a trip hauling intrastate freight exclusively from one part of the city to another, and it was said that the fact that he was expected upon the completion of that task to engage in another, which would have been a part of interstate commerce was immaterial. It will be seen that the case is easily distinguished from the one presented here upon facts which are stated in the former opinion. In the Behrens case the court repeats the language used in Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, that “The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged?” (p. 152.) Again it was said at the close of the opinion in the Behrens case: “The true test is the nature of the work being done at the time of the injury.” (p. 648.) It was said in the Pedersen case that among the questions which naturally arise in this connection are these; “Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier?” (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146, 151.) Applying any or all of these tests to the case now under consideration we are convinced that Thornbro was engaged in interstate commerce when killed. He was doing work which was a necessary part of that commerce in which the carrier was engaged. These conclusions are confirmed by cases cited in the former opinion and by other recent federal decisions. (St. L. & San Francisco Ry. v. Seale, 229 U. S. 156; Wheeling Terminal Ry. Co. v. Russell, 209 Fed. 795; Eng. v. Southern Pac. Co., 210 Fed. 92; Nor. Car. R. R. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. Rep. 305.) The views expressed in the former opinion-are adhered to, and the judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: This appeal involves the question of whether or not a contract for the sale of potatoes was made between The Hayes Produce Company and Possehl Brothers. Upon the testimony produced the trial court found that the negotiations between the parties did not constitute a contract, and thereupon The Hayes Produce Company took an appeal. The existence of the contract must be determined from the correspondence carried on by post and wire between the parties. On Decémber 11, 1911, appellant wrote appellees asking for quotations on Ohio potatoes, two cars of number 2 and two cars of the best grade, to be shipped after the following January 1. In a telegram dated December 13, 1911, appellees made an offer of “two cars seconds forty-five and two choice eighty-five F. O. B. shipment, Jan. 5th to 10th.” On the same date appellant telegraphed “Book two cars small at forty* two cars large Ohio at eighty-five instructions by mail.” It will be observed this was not an acceptance of appellees’ offer, as the appellant offered forty cents instead of forty-five cents for the small potatoes, and added that he had sent instructions by mail. In the letter which followed confirming the telegram appellant only offered forty cents for the small potatoes and asked appellees to put them in sacks holding 120 pounds net, adding, “Ship us one car % large and % small about Jan. 15th, weather permitting, and we will then let you know when to ship the other three.” This letter changed not only the price, but also modified the quantity to be shipped and made a requirement as to the form of shipment; and, in addition, there was a change as to the time of shipment. It thus appears that there was not an approach even to an unconditional acceptance of appellees’ offer. Previous to the receipt of the letter appellees wired that they confirmed the order at the price previously quoted, and on December 16, 1911, wrote appellant that the price of the small potatoes was forty-five cents per bushel, while appellant had only offered forty cents. They also called attention to the fact that the offer was to ship between the 5th and 10th of January, and stated that they did not wish to hold, them later at the price quoted. Then it appears that the appellant opened up with a new proposition limiting the proposed purchase to two cars, and in a letter written on December 19,1911, he said: “Book us for the 2 cars of small Ohios, as per your letter and wires, if you can’t give us booking as per our instructions we will leave the larger ones go and buy later on. Believe that we can buy for less, Kansas City . brokers to-day offering them Del. at 103, and 105 per bu.” Instead of meeting appellant’s last proposition as" made appellees came back with another proposing to sell four cars of potatoes, “two cars choice and two cars small, Ohios at $.85 and $.45 per bushel f. o. b. Baker. If possible, -give us shipping instructions on all four of these cars before Jan. 15th, 1912.” It is clear that there was no meeting of the minds of the parties on the last proposal of appellant. Instead of accepting the identical proposition of appellant as made oh December 19, appellees proposed the sale of a larger quantity of potatoes and introduced a new element — that the delivery should be made upon board the cars at Baker, Minn. There was another change of terms wherein it was stated that the shipment should be made on instructions to be given by appellant. It appears that on January 25, 1912, appellees shipped a carload of potatoes to appellant; and there was some complaint that they were not received in good condition. A telegram was sent by appellant to appellees, “Wire agent allow inspection, will pay draft if not frozen. When will you ship balance, answer quick.” In response appellees telegraphed, “We sold you fob Baker if you don’t want, car advise quick and we will divert.” There is no complaint now as to this shipment of potatoes, which was received and paid for, but it is insisted that there was a completed contract for the sale of other potatoes which appellees have violated. We think the court rightly concluded that the correspondence between the parties did not complete a definite and binding agreement. To make it effective it was necessary that the offer made by one party should have been accepted by the other without any material modification. As was said in Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612: “It is essential, however, that the minds of the contracting parties come to the point of agreement — that the offer and acceptance coincide; and if they do not correspond in every material respect there is no acceptance or completed contract.” (p. 722.) The variance in price, in the quantity proposed to be sold, in the conditions and place of delivery, such as are found in this case, must be deemed to be material departures from the offers made, and when a party introduces new elements or accepts on terms varying from the offer it amounts to a refusal of the offer and ends the negotiations. In Bentz v. Eubanks, 41 Kan. 28, 20 Pac. 505, it was said: “An offer by one party assented to by the other will generally constitute a contract, but the assent must comprehend the whole of the proposition. It must be exactly equal to its extent and terms, and must not qualify them by any new matter; therefore a proposal to accept or an acceptance of an offer on terms varying from those proposed amounts to a rejection of the offer.” (p. 37.) (See, also, Osburn v. Addington, 91 Kan. 586; 138 Pac. 603; National Bank v. Hall, 101 U. S. 43, 25 L. Ed. 822; 35 Cyc. 52.) The judgment of the district court will be affirmed.	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The opinion of the court was delivered by Porter, J.: This is an original action in mandamus, ‘the purpose of which is to test the constitutionality of ■chapter 259 of the Session Laws of 1913. The statute attempts to regulate the sale and taking • of sand and other natural products from navigable .rivers and streams which are the property of the state, ■and to provide for payment to the state of royalties for sand and other products taken from the rivers for •commercial purposes. The defendants other than the state treasurer and the state auditor are persons and firms engaged in the business of taking sand from the rivers and offering the same for sale. If the statute is constitutional it is ■the duty of the sand companies to pay into the state ■.treasury the royalties fixed by the executive council, and such moneys immediately become .a part of the general revenue fund, or of the state school fund, according to whether the sand was taken from islands belonging to the school fund, or from the rivers; and it would likewise' become the duty of the state auditor to keep a record of such payments accordingly. The immediate question involves the duties of the state treasurer and the state auditor in the manner in which the fund derived from the sale of the sand shall be accounted for. The state, on the relation of the attorney-general, therefore brings the action to compel compliance by these officers with the duties imposed by the statute with respect to the fund. Since the act took effect payments of royalties have been made by some of the defendants under protest, and they have been joined as persons interested in the result of the litigation. The objection that the state has other adequate remedies and that mandamus should not issue can not be sustained. The duty sought to be compelled is one of a purely public nature, and the writ of mandamus affords the appropriate remedy. (Bobbett v. The State, ex rel. Dresher, 10 Kan. 9, 14; The State, ex rel., v. McLaughlin, 15 Kan. 228.) The defendants other than the state officers are proper defendants if they have any material interest, however slight, in the result of the litigation. {The State v. Dolley, 82 Kan. 533, 108 Pac. 846.) Chapter 259 of the Session Laws of 1913 is an act “relating to the removal of natural products from rivers and islands belonging to the state.” The first section of the act makes it unlawful for any person to take from “the bed of any navigable river or any other river which is the property of the state of Kansas any sand, oil, gas, gravel or mineral, or any natural product whatsoever from any lands lying in the bed of any such river,” except in accordance with the act. Section 2 provides for obtaining the consent of the executive council of the state upon such terms as to compensation and upon such conditions as the council may determine to be just and proper, and that such compensation to the state shall be paid at such times and under such terms of supervision as the council may direct; and provides that no contract shall be entered into giving any person, company or corporation any exclusive privilege of making purchases under the act. It also contains a provision that nothing in the act “shall prevent the taking without payment therefor of any sand or gravel to be used exclusively for the improvement of public highways or to be used exclusively in the construction of public buildings or for other public use or to be used exclusively by the person taking same for his own domestic use.” The same section provides that where any navigable stream extends into or through any drainage district, one-third of the proceeds of such natural products which the state may sell from within or beneath a portion of the channel of such streams lying within such district shall be paid to the treasurer of such drainage district, to be expended only by the district for the purposes for which it was created; the other two-thirds of such proceeds to be paid into the state treasury. In section 3 the executive council is authorized to make and publish all needful rules, terms and conditions for taking, purchasing or selling sand or other products taken from the streams of the state. Section 6 reads as follows: “For the purposes of this act the bed and channel of any river in this state or bordering on this state to the middle of the main channel thereof and all islands and sand bars lying therein shall be considered to be the property of the state of Kansas unless this state or the United States has granted or conveyed an adverse legal or equitable interest therein since January 29,' 1861, A. D., or unless there still exists a legal adverse interest therein founded upon a valid grant prior thereto; pro vided, that nothing in this act shall affect or impair the rights of any riparian" landowner or lawful settler upon any island which is state school land.” These are the only portions of the act which are material for the present consideration. The streams from which sand is and has been taken by the defendants are the Arkansas and Kansas rivers, both meandered streams. The Kansas river is meandered from its mouth to a point above the city of Topeka; it lies wholly within the state and empties into the Missouri river, which is likewise a meandered stream. The defendant Stewart-Peck Sand Company is the owner of several tracts of land bordering on the Kansas, river.- The title to some of these riparian lands was vested in Wyandotte Indian allottees by patents from the United States under the treaty of 1855. Other tracts are portions of land originally patented to Silas Armstrong, a Wyandotte Indian, under the Sandusky treaty with the Wyandottes ratified in 1842 and the treaty of January, 1855. The Stewart-Peck Sand Company derives title to its riparian lands through mesne conveyances from Indian allottees under these treaties. The Stewart-Peck Southwestern Sand Company claims the title to riparian lands along the south bank of the Kansas river in the city-of Topeka, which is part of a tract patented by the United States to Thomas G. Thornton, December 5, 1861. Defendant Wear Sand Company is the riparian owner and operates upon a tract of land on the south bank of the Kansas river in the city of Topeka, and derives its title through mesne conveyances from George Gardner, to whom patent was issued by the United States October 5, 1860. These defendants have been engaged for some years in taking sand from the Kansas river by means of dredges and pumps, and in selling the sand for commercial purposes. The state has interposed its motion to quash the several returns of the defendant sand companies to the alternative writ, and the case is thus presented to us upon its merits. Briefly summarized, the main contentions of these defendants are: 1. The common law of England, as it existed prior to 1607, having been in force in Kansas territory when the treaties with the Shawnee and Wyandotte Indians were approved, and when the patents were issued to the allottees thereunder, by the United States, and when the patents were issued to Thornton and Gardner, these defendants, deraigning their several titles from such allottees and patentees, are the owners of the bed of the Kansas river adjoining their riparian holdings, between their boundary lines to the thread of the stream. 2. The title of the state to the bed of a meandered stream is not an absolute fee, which the state can dispose of as it wishes; but such title is vested in it in trust for the benefit and common right of all the people, for the purposes for which such property has been used from time immemorial, viz., the common right of passage, of fishing, of the use of the waters for domestic, agricultural and commercial purposes, and therefore the state has no proprietary right in the bed of the stream or in the water which it can sell. 3. The sands in the Kansas river form no part of its bed. They are foreign to the stratification of its bed and banks and flow into it from the upper reaches of its tributaries, beyond meander lines and beyond state lines; that these sands are in constant motion, unstable and unfixed in place, and are ferx naturse in character and become the property of the one first reducing them to possession; that the common right to reduce and subject them to personal dominion is a property right of value of which the defendants can not lawfully be deprived without compensation. 4. That the right to take sand from the river is a right which under the common law may be obtained by prescription, even as against the sovereign, and that the long-continued usage by the Stewart-Peck Sand Company under claim of right to take sand and gravel from the Kansas river has ripened into a vested estate from which it can not be deprived without compensation. 5. That chapter 259 of the Session Laws of Kansas was not legally adopted by the legislature. The first question which we will notice is the authority of the state over the beds of navigable streams and its interest as owner therein. It may be assumed that the legislature in adopting the act in question relied to a large extent upon the recent decision of this court in Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041, where it was ruled in-the syllabus as follows: “The title to the bed of the Arkansas river within the boundaries of Kansas is in the state.” Mr. Justice West, speaking for the court, said: “It is not pretended that the river is now navigated ■or navigable in fact in Kansas, and the court, as well as everybody else, knows that it is not. But does this conclude the matter?” (p. 948.) The opinion refers to a number of facts of which the •court takes judicial notice, including the size and extent of the Arkansas river; that through its long course in Kansas both of its banks were meandered by the .government surveyors; the act of congress of February 20, 1811, passed for the purpose of enabling the people of the territory of Orleans to form a constitution and state government, which provided that the Mississippi river and the navigable rivers and waters leading into the state should be common highways and forever free to the inhabitants of the state as to other citizens of the United States; also to similar provisions found in the act admitting Louisiana and the act creating the Missouri territory, and to similar declarations in the ordinance for the admission of the Northwest territory. The opinion then proceeds: “The question as to when a stream once navigable ceases to be so by nonuse or by the accumulation of sand or soil is one on which we have been afforded no light. But considering the character, width and length of the river, the various acts and declarations by congress in reference thereto, and the policy shown thereby with reference to waters which more than one hundred years ago were navigable according to the needs and uses of that time, and which led into the Mississippi, we deem it justifiable to hold, and do hold, that while the stream is not now navigated in fact anywhere in Kansas it has, nevertheless, not ceased to be a highway set apart by national act and declaration for public use in the manner and at the time to be determined upon by the federal government. This being true, the title to the bed is in the state, and islands therein not surveyed or claimed by the government belong also to the state, and under the act of 1907 may be sold as school land.” (p. 964.) If there be any one proposition upon which the courts have agreed “with no variableness, neither shadow of turning,” it is that the extent of the title of the owner of lands bordering upon navigable waters depends upon the local law. Whether under a patent from the United States the title extends to the center of the stream or lake or is limited to the margin thereof is everywhere held to be dependent_on the law of the state. (Martin et al. v. Waddell, 16 Pet. [41 U. S.] 367; Pollard’s Lessee v. Hagan et al., 3 How. [44 U. S.] 212, 11 L. Ed. 565; Weber v. Harbor Commissioners, 18 Wall. [85 U. S.] 57, 21 L. Ed. 798; Barney v. Keokuk, 94 U. S. 324; Packer v. Bird, 137 U. S. 661; Hardin v. Jordan, 140 U. S. 371, 35 L. Ed., 428; Shively v. Bowlby, 152 U. S. 1, 38 L. Ed. 31; Philadelphia Co. v. Stimson, 223 U. S. 605, 56 L. Ed. 570; Scott v. Lattig, 227 U. S. 229, 57 L. Ed. 490.) In Barney v. Keokuk, supra, it was said: “If they (the states) choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.” (p. 338.) In United States v. Chandler-Dunbar Co., 229 U. S. 53, 57 L. Ed. 1063, it is said in the opinion: “The technical' title to the beds of the navigable rivers of the United States is either in the states in which the rivers are situated, or in the owners of the land bordering upon such rivers. Whether in one or the other is a question of local law.” (Cases cited, p. 60.) In the recent case of Kansas v. Colorado, 206 U. S. 46, the United States itself was a party and resisted a claim asserted by Kansas to the ownership of the bed of the Arkansas river. In the opinion Mr. Justice Brewer said: “But it is useless to pursue the inquiry further in this direction. It is enough for the purposes of this case that each state has full jurisdiction over the lands within its borders, including the beds of streams and other waters.” (p. 93.) A multitude of cases to the same effect might be cited from the courts of the various states. In fact, whether a patent of upland from the United States conveyed the title to the bed of navigable streams is not a federal question within the removal acts. (Gould on Waters, 3d ed., § 40; Kenyon v. Knipe, 46 Fed. 309.) Although in a former edition the exact contrary was said to be the law. (Gould on Waters, 2d ed., § 40.) Our first inquiry, therefore, must be, what is the law of Kansas? In his dissenting opinion in Hardin v. Jordan, supra, Mr. Justice Brewer, after stating that “beyond all dispute the settled law of this court, established by repeated decisions, is that the question how far the title of a riparian owner extends is one of local law” (p. 402), used this language: “For a determination of that question the statutes of the state and the decisions of its highest court furnished the best and the final authority.” (p. 402.) We have no hesitation in declaring that the law of Kansas upon this question has been settled not only by statutory authority, but by previous decisions of this court, notably: Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330, and Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041. In Wood v. Fowler, supra, the action was to restrain defendants from cutting and removing ice formed on the surface of the Kansas river within certain described boundaries. It involved the title of the riparian owner, who claimed to own to the center of the stream. It was decided in that case that a riparian owner owns only to the bank and not to the center of the navigable stream. In the opinion Mr. Justice Brewer, after reciting historical facts showing that the Kansas river is a navigable stream, used this language: “The stream having been meandered, the lines of the surveys are bounded by the bank; the patents from the United States passed title unly to the.bank; Splitlog, as riparian owner, owned only to the bank. The title to the bed of the stream is in the state.” (p. 688.) We shall have occasion to refer again to this decision upon another branch of the present case. In Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845, it was said: “In disposing of public land bordering upon rivers it is not the policy of the government to reserve title to the lands under water, whether the stream be navigable or not. The government parts with its whole title, leaving the question of boundary, whether the shoreline or the thread of the stream, to be determined by the local law. In case of navigable waters in this state the boundary is at the bank, and the title to the bed of the stream is in the state.” (Citing Wood v. Fowler, supra, and Hardin v. Jordan, 140 U. S. 371.) (p. 545.) In the briefs counsel for defendants say: “It is true that the government has not, directly, at any time, made a practice of disposing of the beds of nontidal rivers, where the banks thereof have been meandered in the course of the making of the public surveys; but this fact does not by any means imply lack of power to do so.” It must be conceded that the precise question is one upon which the courts were for a long time undecided. Expressions were found in opinions rendered by the United States supreme court which left the matter in doubt. However, as early as 1856, in the case of Haight v. The City of Keokuk, 4 Iowa, 199, the supreme court of Iowa announced the doctrine that the government can not convey the land between high- and low-water mark on the public navigable rivers, citing Pollard’s Lessee v. Hagan et al., 3 How. (44 U. S.) 212, and other authorities. In the opinion it was said: “Although no state may exist at the time of such a grant, as in this case, yet grants and sales made under such circumstances are to be construed as having a view to the future sovereignty which may or will arise, .and so as not to impair its rights when arisen.” (p. 213.) . One of the first decisions by a state court holding squarely that the United States have no authority to convey the title to the bed of navigable streams within a territory before its admission to the Union was by the supreme court of Oregon in Hinman v. Warren, (1877) 6 Ore. 408. Oregon was admitted into the Union February 14, 1859. Long prior thereto, in 1850, congress passed an act known as the “Oregon Donation Act,” requiring the lands to be surveyed as in the Northwest Territory; and it made grants or donations of land, according to government surveys, to actual settlers and occupants. The supreme court of the state, in the Hinman case, held that a patent from the United States conveyed no land below high-water mark, and that the tide-lands belong to the state of Oregon by virtue of its sovereignty. In the syllabus it was ruled that: “The United States government has no authority to so dispose of lands within a territory as to make it impossible to admit such territory into the Union upon an equal footing with.the other states. In all matters that touch the sovereignty of the future state, the general government is simply a protector thereof, until such time as the territory becomes a state.” In the first and second editions of Gould on Waters, published in 1883 and 1891, respectively, the author used this language: “In Hinman v. Warren, in Oregon, it was held that the United States, while holding the title to the soil of tide waters, can not make a valid conveyance of such soil. There are also dicta to this effect in the case of Haight v. Keokuk, in Iowa, but Hinman v. Warren was the first adjudication upon the subject. According to this view, the United States holds purely as trustee for the future State, and is without statutory or constitutional authority to do any act making it impossible to admit the new State upon a footing equal, in all respects, with that of the other States. The decisions of the Supreme Court of the United States were thought to lead to the conclusion reached in Hinman v. Warren; but it would seem that there is no very direct expression of such a view, in the opinions of that court.” (§40.) It is significant that in the third edition of Gould on Waters, published in 1900, the author omitted the foregoing language from the text; and section 40 was rewritten to conform to the then recent decision of the supreme court of the United States in Shively v. Bowlby, 152 U. S. 1. That case, decided in 1894, cites with approval Hinman v. Warren as stating the Oregon law. Since the case of Shively v. Bowlby, supra, the question can no longer be considered doubtful. In that opinion Mr. Justice Gray reviewed the decisions in this country, and referred to the origin of the law of England from the time of Lord Hale, where it was settled that the title to tide-lands or of arms of the sea below ordinary high-water mark is in the King, except where rights have been acquired by express grant or by prescription or usage. .The doctrine was declared to be well settled here as in England that a grant from the sovereign of land bounded by navigable tide-water passes no title below high-water mark, unless either the language of the grant, or long usage under it, clearly indicates that such was the intention (citing Lord Hale in Hargrave’s Law Tracts 17, 18, 27; United States v. Pacheco, 2 Wall. [69 U. S.] 587.) Martin et al. v. Waddell, (1842) 16 Pet. (41 U. S.) 367, is cited as the leading case in this country, and after stating the different rules which obtain in the original states with respect to .the title to lands covered by navigable streams or by tide-waters, the opinion proceeds: “The foregoing summary of the laws of the original States shows that there is no universal and uniform law upon the subject; but that each State has dealt with the lands under the tide waters within its borders according to its own views of justice and policy, reserving its own control over such lands, or .granting rights therein to individuals or corporations, whether owners of the adjoining upland or not, as it considered for the best interests of the public. Great caution, therefore, is necessary in applying precedents in one State to cases arising in another: “IV. The new States admitted into the Union since the adoption of the constitution have the same rights as the original states in the tide waters, and in the lands below the high water mark, within their respective jurisdictions.” (p. 26.) „ “VIII. Notwithstanding the dicta contained in some of the opinions óf this court, already quoted, to the effect' that Congress has no power to grant any land below high water mark of navigable waters in a territory of the United States, it is evident that this is not strictly true.” (p. 47.) “We can not doubt, therefore, that Congress has the power to make grants of lands below high water mark of navigable waters in any territory of the United States, whenever it becomes necessary to do so in order to perform international obligations, or to effect the improvement of such lands for the promotion and convenience of commerce with foreign nations and among the several states, or to carry out other public purposes appropriate to the objects for which the United States hold the territory. “IX. But Congress has never undertaken by general laws to dispose of such lands. And the reasons are not far to seek.” (p. 48.) (The italics ours.) The reasons are stated in another part of the opinion in the following language: “The Congress of the United States, in disposing of the public lands, has constantly acted upon the theory that those lands, whether in the interior or on the coast, above high water mark, may be taken up by actual occupants, in order to encourage the settlement of the country; but that the navigable waters and the soils under them, whether within or above the ebb and flow of the tide, shall be and remain public highways; and, being chiefly valuable for the public purposes of commerce, navigation and fishery, and for the improvements necessary to secure and promote those purposes, shall not be granted away during the period of territorial government; but, unless in case of some international duty or public exigency, shall be held by the United States in trust for the future states, and shall vest in the several states, when organized and admitted into the Union, with all the powers and prerogatives appertaining to the older states in regard to such waters and soils within their respective jurisdictions; in short, shall not be disposed of piecemeal to individuals as private property, but shall be held as a whole for the purpose of being ultimately administered and dealt with for the public benefit by the state, after it shall have become a completely organized community.” (p. 49.) The court decides that a donation claim under the act did not of its own force have the effect of passing any title in lands below high-water mark. It will be observed that the court limits the power of congress to make grants of lands below high-water mark of navigable rivers in a territory to instances where it becomes necessary to do so in order to perform international obligations, or to effect the improvement' of such lands for the purposes of commerce, or to carry out other public purposes appropriate to the obj écts for which the United States hold the territory. The contention of defendants that congress has the power to grant to settlers the title to the bed of nontidal navigable streams within a territory is not sustained by any express declaration of the United States supreme court to which our attention has been called; and certainly no such inference can be drawn from anything that is said in the exhaustive opinion in Shively v. Bowlby, supra. Moreover, many of the decisions to which we have already referred, and numerous others which might be cited, hold that in the case of all meandered streams no part of the soil under them is included within the original survey or passes by virtue of the patent. (Dana v. Hurst, 86 Kan. 947, 122 Pac. 1041; Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845.) In Mayor, &c., of Mobile v. Eslava, 9 Porter (Ala.), 577, it was said: “By the acts of Congress regulating the survey and disposal of the public lands, the federal government has renounced the title to the navigable waters, and the soil covered by them.” (p. 604.) In Hardin v. Jordan, supra, the court said: “We do not think it necessary to discuss this point further. In our judgment the grants of the government for lands bounded on streams and other waters, without any reservation or restriction of terms, are to be.construed as to their effect according to the law of the State in which the lands lie. The next question for consideration, therefore, is, what is the law of Illinois with regard to such grants?” (p. 384.) The same court, in the case of Hardin v. Shedd, 190 U. S. 508, used this language: “When land is conveyed by the United States bounded on a nonnavigable lake belonging to it, the grounds for the decision must be quite different from the considerations affecting a conveyance of land bounded on navigable water. In the latter case the land under the water does not belong to the United States, but has passed to the state by its admission to the Union.” (p. 519.) “The rule that a grant is to be construed most strongly against the grantor does not apply to public grants. The government being but a trustee for the public, its. grants are to be construed strictly. Grants of land by the United States, by patent, have relation to the survey, plats, and field notes.” (McManus v. Carmichael, 3 Iowa, 1, syl.) “The United States, upon acquiring a Territory, whether by cession from one of the States, or by treaty with a foreign country, or by discovery and settlement, take the title and the dominion of lands below high water mark of tide waters for the benefit of the whole people, and in trust for the future States to be created out of the Territory.” (Shively v. Bowlby, 152 U. S. 1, syl. ¶ 6.) By the policy of the state of Wisconsin, declared in numerous judicial decisions, there is a qualified title to submerged lands of rivers navigable in fact conceded to shore owners, but this qualified title is not permitted to displace or materially affect public rights or the title to lands under the streams, which are held to be in the state. In Illinois Steel Co. v. Bilot and Wife, 109 Wis. 418, 85 N. W. 402, 83 Am. St. Rep. 905, decided in 1901, it was held that the title to lands under lakes, ponds and navigable rivers of the state was never in the United States, except in trust for public purposes; that a patent from the United States, covering such lands, whether made before the state was admitted into the Union or thereafter, conveys no title. In the opinion it was said: “The United States never had title, in the Northwest Territory out of which this state was carved, to the beds of lakes, ponds, and navigable rivers, except in trust for public purposes; and its trust in that regard was transferred to the state, and must there continue forever, so far as necessary to the enjoyment thereof by the people of this commonwealth. Whatever concession the state may make without violating the essentials of the trust, it has been held, can properly be made to riparian proprietors.” (p. 426.) Among the cases cited are: Village of Pewaukee v. Savoy and another, 103 Wis. 271, 74 Am. St. Rep. 859, 79 N. W. 436; Barney v. Keokuk, 94 U. S. 324; Railroad Company v. Schurmeir, 7 Wall. (74 U. S.) 272. Some of the same questions were passed upon in the recent case of United States v. Mackey, in the district court of the United States for the eastern district of Oklahoma, —■ Fed.-. The question involved was the validity of oil and gas leases in the bed of the Arkansas river. There were three rival claimants. The United States sought to maintain the right of the Creek Indians to the oil underlying the bed of the river. The Creek Indians are one of the five civilized tribes holding permanent titles to their lands by treaty, and after the tribal relations were dissolved the lands were allotted in severalty to the members of the tribe. Avery and the Gipsy Oil Company claimed under leases from the owner of the riparian lands, Avery’s title being founded upon a lease to the lands in the bed of the stream, and that of the oil company on the claim that its lease covered all the riparian lands, and therefore the bed of the stream, on the theory that the title of the riparian owners extended to the middle thread of the stream. The Pollard Hagan Oil Company claimed under a lease from the state of Oklahoma on the theory that the state acceded to the ownership of the bed of the river upon her admission to the Union, subsequent to the making of the lease. The court upheld the Oklahoma title on the ground that the Arkansas is navigable, and that the title of the United States to the river beds was in trust for the state of Oklahoma; that the Indians were mere occupants of the lands, and that the state alone could dispose of the title to the bed of the streams. In the opinion the court approves and follows the Kansas case of Dana v. Hurst, supra, and starts with the proposition that the Arkansas river is a navigable stream; that the grant to the Creek Nation by the patent of August 11, 1852, did not convey to that nation the same title and interest in the bed of the river as it acquired by the patent to the uplands. The opinion contains an exhaustive review of the decisions, many of which we have already cited. Since the argument'we have been furnished with a copy of a decision by the supreme court of Oklahoma which was handed down March 10, 1914. • The case is The State of Oklahoma v. Larry Nolegs, the Jim Crow Oil Co., et al. Portions of the syllabus read as follows: “1. The ownership of the navigable waters and the soil under them in all the territory embraced in the Louisiana Purchase was held in trust by the Federal Government and as each of the states were created, the same, within the boundaries of such state, passed to it and the absolute right to such navigable waters and the soil thereunder is in the state, subject to the public rights and the paramount power of Congress over navigation. “2. If a river is in fact navigable and in fact used for purposes of commerce, the title to the waters thereof and the bed thereunder is held by the Federal Government and when a Territory containing such navigable river becomes a state, the title thereto vests in the state, regardless of subsequent navigation or navigability and the fact that a riparian owner obtains title to the land adjoining such stream prior to statehood does not divest the state of such title. “6. Where a government patent to land describes the same by lots and refers to the official plat of the survey thereof and such plat shows that the land conveyed is bounded by a navigable river, the title extends no further than the edge of the stream and does not include an island, though the channel between that and the main land may not be navigable.” The foregoing principles of law are supported in a well-considered opinion by the Oklahoma court which follows and approves the Kansas case of Dana v. Hurst, supra, and United States v. Mackey, supra, and refers to numerous acts of congress, public records and documents of the several departments at Washington recognizing the navigability of the Arkansas river. As will be observed, many of the questions passed upon are •directly in point here. But defendants assert a prior claim to the bed of the Kansas river adjoining their riparian lands by virtue of a patent issued to Silas Armstrong, a Wyandotte Indian. Again they are met and foreclosed by the decision in Wood v. Fowler, supra. In that case plaintiff claimed under a patent to Matthias Splitlog, a Wyandotte Indian, whose title was in all respects the same as that of Silas Armstrong to the lands in this case. But the court said: “The stream having been meandered, the lines of the surveys are bounded by the bank; the patents from the United States passed title only to the bank; Splitlog, as riparian owner, owned only to the bank. The title to the bed of the stream is in the state.” (p. 688.) In the briefs defendants say that this language was not necessary to the decision; but the court at the time deemed the question necessary and controlling and saw fit to rest its decision on thát ground, so that the language can not be regarded as dictum. The contention, of defendants that the common law in all its strictness was in force in the territory of Kansas when the Indian patentees acquired title, and that by force of that law the original riparian owners took to the center thread of the stream, is also disposed of by what was said in Wood v. Fowler, as follows: “It is true a distinction was recognized in England, and that streams were considered navigable only in so far as they partook of the sea, and to the extent that their waters were affected by the ebb and flow of the tide, and only so far was the title of the riparian owner' limited to the bank; above such point, even although the stream was large enough to be used, and in fact was used, for purposes of navigation, the riparian owner owned the soil ad medium filum aquse. . . . The same doctrine of riparian ownership to the center' of the stream in all rivers unaffected by the ebb and flow of the tide, is recognized in some states of the Union; but the better and more generally accepted rule in this country is, to apply the term ‘navigable’ to all the streams which are in fact navigable; and in such case to limit the title of the riparian owner to the bank of the stream. Especially is this true in the states where the lands have been surveyed and patented under the federal law. See the following authorities: Rld. Co. v. Schurmeir, 7 Wall. 272; McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Iowa, 199; Tombden v. Rld. Co., 32 Iowa, 106; Flannigan v. City of Philadelphia, 42 Pa. St. 219; Bridge Co. v. Kirke, 46 Pa. St. 112; People v. Tibbets, 19 N. Y. 523; People v. Loomis, 33 N. Y. 461.” (p. 689.) The defendants,, however, say that the extent to which the common law became a rule of property in Kansas is to be determined, not from language used by way of argument in Wood v. Fowler, but by reference to the act of the territorial legislature of 1855 (Statutes of Kansas Territory, 1855, ch. 96), which declared that the common law of England and all statutes prior to 4 James I. not local to that kingdom, and of a general nature, should be the rule of action and decision in the territory (Sattig v. Small, 1 Kan. 170, 175). Substantially the same provision was reenacted in 1859. In 1868 the language was changed to read: “The common law, as modified by constitutional and statutory law, judicial decisions, and the condition and wants of the people; shall remain in force in aid of the general statutes of this state.” (Gen. Stat. 1868, ch. 119, §3.) It is worth while to inquire by what process of reasoning it can be asserted that Kansas was deprived of her right to enter the Union upon an equality with the other states? Time and again the supreme court of the United States has declared that each of the new states is entitled to be admitted into the Union on an equal footing with the original states. “By the preceding course of reasoning we have arrived at these general conclusions: First. The shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States, respectively. Secondly. The new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. ... To maintain any other doctrine, is to deny that Alabama has been admitted into the Union on an equal footing with the original States, the constitution, laws, and compact, to the contrary notwithstanding.” (Pollard’s Lessee v. Hagan et al., 3 How. [44 U. S.] 212, 230, 229, 11 L. Ed. 565, 573; Martin et al. v. Waddell, 16 Pet. [41 U. S.] 367; Weber v. Harbor Commissioners, 18 Wall. [85 U. S.] 57, 71, 21 L. Ed. 798; Knight v. U. S. Land Association, 142 U. S. 161, 35 L. Ed. 974; Shively v. Bowlby, supra; Withers v. Buckley et al., 20 How. [61 U. S..] 84.) The Kansas and the Arkansas rivers when the territorial act of 1855 was passed were navigable in fact, and were so recognized by congress in its surveys of the public lands. Ordinarily the first lands to be taken up by settlers are those on the banks of the streams. The great struggle for the admission of Kansas might have been prolonged until all but a few tracts of riparian lands along the Kansas river from its mouth to Junction City had been settled upon. Had such been the situation, and if defendants’ contention is sound, Kansas would have entered the Union- stripped of the valuable right of ownership in and control over the bed of the Kansas river, or what is just as inconceivable, would have held the title only to those fragmentary portions of the bed of the stream that adjoined the lands not settled upon. Moreover, this situation would have resulted, not because- the Kansas river was not a navigable and public stream in fact, but because the common law of England as declared by Lord Hale and collected by him from decisions in the Year Books made the ebb and flow of the tide the test of navigability. The defendants rely with much confidence upon the following language from the decision of Judge Campbell of the federal court of Oklahoma in United States v. Mackey, supra: “If, therefore, we are to apply the strict rule of the common law as it existed in England at the time this country was colonized, the rights of the owners of the upland bordering upon this stream, so far as ownership of the soil is concerned, must be considered as extending to the middle thread of the stream, to the exclusion of the state, subject only to the public right of navigation.” ■ No one will dispute the legal proposition stated. It merely asserts that under the strict rules of the common law'as it existed in England, no river or arm of the sea was in law navigable above the point where it was affected by the tide, although it may have been navigable in fact above such point, and the title of the riparian owner above the ebb and flow of the tide extended to the middle thread of the stream, while the title to the bed of that portion of the stream affected by the tide was in the crown. Of coujse, if that rule of the common law were applied to Kansas streams the defendants would be correct in their contention. Oklahoma’s adopting statute is worded as our amended statute of 1868, and Judge Campbell may have been of the opinion that if the Oklahoma statute contained language as broad as our statute of 1855, the riparian proprietor of lands bordering on the Arkansas river would have acquired title to the middle thread of the stream. But we do not so construe the effect of the territorial acts by which Kansas adopted the rules of the common law. We have always supposed that the first settlers in Kansas, those who came even before the Kansas-Nebraska act, brought with them the common law • of England, that is so much of it as was not local to England and was applicable to the circumstances and conditions of the territory, and that the common law to that extent was already a part of the law of the territory when the adoption act of 1855 was passed. How the common law came to Kansas is told in a comprehensive sketch of the subject in Clark v. Allantan, 71 Kan. 206, 80 Pac. 571. In the opinion Mr. Justice Burch reviews the history of the formation of the Louisiana territory, and refers to the acts of congress, the legislation of the several states and territories to which Kansas has at different times in her history belonged, and cites the public documents and decided cases bearing upon the question. Speaking of the principles of the common law to which the immigrants who came from the Southern states “were inured,” the opinion says: “It was likewise notoriously the heritage of the men who came from the North to Kansas to aid in establishing its law.” (p. 224.) The opinion also quotes from the message of Governor Reeder of July 3, 1855, to the first territorial legislature as follows: “ ‘It appears that the laws of the United States not inapplicable to our locality — the laws of the territory of Indiana made between the 26th of March, 1804, and the 3d of March, 1805, enacted for the district of Louisiana — the laws of the territory of Louisiana — the laws of the territory of Missouri — the common law, and the law of the province of Louisiana at the time of the cession, except so far as the latter have superseded the former, still remain in force in the territory of Kansas. As the common law to a considerable extent was adopted for the territory by congress as late as 1812, and by the Missouri legislature as late as 1816, ... it has without doubt superseded and supplied a great amount of the law previously existing.’ ” (pp. 220, 221.) Statutes solemnly enacted are often said to be merely declaratory of the common law; that is to say, the law declared by the statute was already in existence; and the courts, without the sanction of the statute, would in a proper case have enforced it. Moreover, the act of 1855 expressly excepts from its operation those rules of the common law of England which were local to that kingdom and not of a general nature. What rule could be more local to Great Britain and less general in nature than one which could only apply to the peculiar natural conditions existing there, the absence of navigable streams that were unaffected by the ebb and flow of the tide? What rule could be imagined more unsuited to the great Mississippi and its navigable tributaries, not only rendered navigable by the laws of nature but the free navigation thereof consecrated and guaranteed by public treaties and acts of congress? Speaking of the rights of Alabama, the supreme court said in the opinion in the case of Pollard’s Lessee v. Hagan et al., supra: “But her rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the colonies before the Revolution, but as modified by our own institutions.” (p. 229.) In Chisholm v. Georgia, 2 Dallas (2 U. S.), 419, 1 L. Ed. 440, 447, Justice Iredell used this language with respect to the common law, which is so often quoted: “I know of none such, which can affect this case, but those derived from what is properly termed ‘the common law,’ a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controls it, to be in force in each State, as it existed in England (unaltered by any statute) at the time of the first settlement of the country.” (p. 435.) The italics are ours and emphasize the qualifying language to which we wish especially to direct attention. There has always been, it is true, a contrariety of opinion in the courts of the different states upon this question. Those of the original states with rivers and waters affected by the ebb and flow of the tide adopted the common law test of navigability. But this was repudiated by some of the original states as wholly inapplicable to great rivers and streams actually navigable and wholly unaffected by the tide. The supreme •court of Pennsylvania as early as 1810 decided that the doctrine of Lord Hale as to navigable rivers is not applicable to the larger rivers of Pennsylvania, such as the Ohio, Delaware, Susquehanna and Allegheny. Chief Justice Tilghman, who tried the case on the circuit, said in his opinion: “But the common law principle concerning rivers, even if extended to America, would not apply to such a river as the Susquehanna, which is a mile wide, and runs several hundred miles through a rich country, and which is navigable and is actually navigated by large boats. If such a river had existed in England, no such law would ever have been applied to it. Their streams, in which the tide does not ebb and flow, are small.” (Carson v. Blazer, 2 Binn. 475, 477.) His ruling was affirmed in the supreme court in an opinion which, after referring to the act of the assembly of 1877, declaring that the common law of England shall be binding on the inhabitants of the state, used this language: “But the uniform idea has ever been that only such parts of the common law as were applicable to our local situation have been received in this government. The principle is self-evident. The adoption of a different rule would, in the language of Sir Dudley Ryder, resemble the unskillful physician, who prescribes the same remedy to every species of disease. The qualities of fresh or salt water can not amongst us determine whether a river shall be deemed navigable or not. Neither can the flux or reflux of the tides ascertain its character.” (p. 484.) (To the same effect is Shrunk v. The President, &c., of the Schuylkill Navigation Company, 14 Serg. & Rawl. 71.) One of the first to adopt the common sense rule was the supreme court of North Carolina in the case of Wilson v. Forbes, 2 Dev. (13 N. Car.) 30, decided in 1828. In the opinion, Henderson, Judge, said: “It is clear that by the rule adopted in England, navigable waters are distinguished from others, by the ebbing and flowing of the tides — but this rule is entirely inapplicable to our situation, arising both from the great length of our rivers, extending far into the interior, and the sand-bars and other obstructions at their mouths. By that rule, Albemarle and Pamptico sounds, which are inland seas, would not be deemed navigable waters, and would be the subject of private property.” (p. 34.) The great case of McManus v. Carmichael, 3 Iowa, 1, is cited with approval in our own case of Wood v. Foivler, supra. It is a storehouse of reason and authority to which we are much indebted. Judge Dillon was one of the counsel who contended that the absurd rules of the common law could not be made the test of the navigability of a great river like the Mississippi. In the briefs he said: “If, . . . this river is navigable, then it is so in spite of the common law; or, more correctly speaking, it is navigable, because the common law, not having any applicability to this river, has nothing to do — I repeat it, the common law has nothing to do — with the question as to whether it is navigable or not navigable.” (p. 25.) And he was speaking of navigability in law as affecting riparian rights. In the opinion Mr. Justice Woodward used this language: “And if we, like the people of these states, generally, have brought the common law with us; then, too, we, like them, have brought such parts of it as are adapted to our institutions and circumstances; and we ask with confidence, whether the rules and tests'which are applicable enough to the rivulets of England, shall be taken to measure those waters, whose flow is through the climates and zones of the earth?” (p. 31.) Reviewing the decided cases he said:' “In the most of those from the northeastern states, the subject is discussed very little;'but they simply assume the common law rule as- the one to decide by, and look no farther.” (p. 33.) He quotes from the opinion of the judges in the case of The Canal Commissioners v. The People, 5 Wend. 423, where Chancellor Walworth said: . “The principle itself does not appear to be sufficiently broad to embrace our large fresh water lakes, or inland seas, which are wholly unprovided for by the common law of England. . . •. It is not necessary to express an opinion whether this principle can be properly-applied to some parts of those streams which are navigable from the sea by large ships and vessels, far above the influence of the tides, as that question can never arise in this state. We have no such rivers.” (pp. 447, 448.) Commenting upon this language, Justice Woodward said: “Surely, such an expression leaves us, who have such rivers, free to discuss the question anew, and without feeling constrained by those decisions.” (p. 41.) We quote the following extracts from the syllabus of the Iowa case: “Although the ebb and flow of the tide was, at common law, the most usual test of navigability, it was not necessarily, the only one. “But however this may be, that test is not applicable to the Mississippi river. “The term navigable embraces within itself, not merely the idea that the waters could be navigated, but also the idea of publicity, so that saying waters are public is equivalent, in legal sense, to saying that they are navigable. “It is navigability in fact which forms the foundation for navigability in law, and from the fact follows the appropriation to public use, and hence its publicity and legal navigability. ' “The real test of navigability in this country is ascertained by use, or by public act or declaration. “The acts and declarations of the United States declare and constitute the Mississippi river a public highway, in the highest and broadest intendment possible.” The leading western cases to the contrary are Morgan and Harrison v. Reading, 3 Sm. & M. (Miss.) 366, decided in 1844, and Middleton v. Pritchard et al., 3 Scam. (4 Ill.) 510. So far as we have examined they are the only cases which have applied the strict rule of the common law to the Mississippi river, and which hold that it is not in law a navigable stream. The conflict of opinion in the various states upon this vexed question has created some anomalous conditions. Because of the adherence of the Illinois courts to the strict rules of the common law as to property rights, the owner of lands' in northern Illinois bordering on the east bank of the Mississippi owns the bed of the river to the middle thread, where his title is met by that of the sovereign state of Iowa. In Barney v. Keokuk, supra, Justice Bradley said: “In Iowa, as before stated, the more correct rule seems to have been adopted after a most elaborate investigation of the subject. The exhaustive examination of this question by the Supreme Court of Iowa in 1856, in the case of McManus v. Carmichael, 3 Iowa, 1, really leaves nothing to be said.” (p. 338.) The fact must not be lost sight of that the supreme court of the United States repudiated the absurd definition of the common law as long ago as 1851, in the case of The Genesee Chief, 12 How. (53 U. S.) 443. The opinion, which was delivered by Chief Justice Taney, has long been recognized as one of the monuments of the law. The court was confronted by a condition. In its earlier cases, notably The Thomas Jefferson, 10 Wheat. (23 U. S.) 428, the court had decided that the admiralty jurisdiction of congress was limited to tidewaters. In 1845 congress passed an act, the validity of which was regarded as doubtful, and by which it was sought to extend the admiralty jurisdiction to the great navigable streams and inland lakes. The court freely recognized its embarrassment because of its former rulings, and in the opinion regretted that the proposition had not been presented at an earlier time in the history of the country. The court, however, expressed itself as convinced that it would not do to follow an erroneous decision into which it fell “when the great importance of the question as it now presents itself could not be foreseen.” (p. 456.) In the opinion it was said: “It is evident that a definition that would at this day limit public rivers in this country to tide-water rivers is utterly inadmissible. We have thousands of miles of public navigable water, including lakes and rivers, in which there is no tide. . . . The lakes and the waters connecting them are undoubtedly public waters; and we think are within the grant of admiralty and maritime jurisdiction in the Constitution of the United States.” (p. 457.) ' The act of congress was held constitutional. We must once more refer to the language of Mr. Justice Bradley in Barney v. Keokuk, supra: “And since this court, in the case of The Genesee Chief, 12 id. 443, has declared that the Great Lakes and other navigable waters of the country, above as well as below the flow of the tide, are, in the strictest sense, entitled to the denomination of navigable waters, and amenable to the admiralty jurisdiction, there seems to be no sound reason for adhering to the old rule as to the proprietorship of the beds and shores of such waters.” (p. 338.) We have already quoted from opinions of the supreme court of Pennsylvania. The same court in a later case has held that the Monongahela is a navigable stream, and that its soil up to low-water mark, and the river itself, are the propei"ty of the commonwealth. In Monongahela Bridge Co. v. Kirk, 46 Pa. St. 112, the absurdity of the common-law test of navigability is aptly stated in the following language: “We are aware that by the common law of England such streams as the’ Mississippi, the Missouri, the rivers Amazon and Plate, the Rhine, the Danube, the Po, the Nile, the Euphrates, the Ganges and the Indus, were not navigable rivers, but were the subject of private property, whilst an insignificant creek in a small island was elevated to the dignity of a public river, because it was so near the ocean that the tide ebbed and flowed up the whole of its petty course. The Roman law, which has pervaded Continental Europe, and which took its rise i-n a country where there was a tide less sea, recognized all rivers as navigable which were really so, and this common-sense view was adopted by the early founders of Pennsylvania,- whose province was intersected by large and valuable streams, some of which are a mile in breadth.” (p. 120.) The doctrine of the Iowa courts repudiating the tidal test of navigability and declaring that a stream is navigable in law which is navigable'’in fact, and which has been declared to be a public stream by the acts of congress and recognized as such by government surveys of the public lands, has been expressly approved by the supreme court of the United States in the case of Packer v. Bird, 137 U. S. 661, 34 L. Ed. 819, which involved the title to the bed of the Sacramento river in California. In the opinion Mr. Justice Field, after referring to the states which have adopted the common-law rule to its fullest extent and to those which like Pennsylvania and Iowa have repudiated it, used this language: “The legislation of Congress for the survey of the public lands recognizes the general rule as to the public interest in waters of navigable streams without reference to the existence or absence of the tide in them.” (p. 672.) In the opinion it was said: “A different test must, therefore, be sought to determine the navigability of our rivers, with the consequent rights both to the public and the riparian owner, and such test is found in their navigable capacity. Those rivers are regarded as public navigable rivers in law which are navigable in fact. . . . The same reasons, therefore, exist in this country for the exclusion of the right of private ownership over the soil under navigable waters when they are susceptible of being used as highways of commerce in the ordinary modes of trade and travel on water, as when their navigability is determined by the tidal test. It is, indeed, the susceptibility to use as highways of commerce which gives sanction to the public right of control over navigation upon them, and consequently to the exclusion of private ownership, either of the waters or the soils under them.” (Italics ours.) (p. 667.) In those states where the common-law test as to navigability has been followed the courts recognize the right of the state to keep the stream open for the public use of navigation, and they argue that the public right is in no way impaired by the fact that the bed of the stream is owned absolutely by the riparian owners. Thus, in Lorman v. Benson, 8 Mich. 18, 77 Am. Dec. 435, it was said: “The public authorities can regulate water highways as well as land highways, although the soil of neither belongs to the state.” (p. 32.) The same argument is employed by Mr. Farnham in his vigorous opposition to any relaxation to the strict rule of the common law. (1 Farnham, Waters and Water Rights, p. 253.) It is worthy of note that some of the courts which have felt themselves bound by the common-law test of navigability have refused to apply this doctrine in its entirety, but on the contrary have reserved to themselves the right to modify that ancient rule wherever in their judgment it has been found inapplicable to the situation and conditions of the people. Thus, in the recent case of Fulton L., H. & P. Co. v. State of N. Y., (1911) 200 N. Y. 400, 94 N. E. 199, 37 L. R. A., n. s., 307, the New York court of appeals, while declaring that in adopting the common law of England the people of that state took over such of its rules as were applicable to and consistent with their condition and circumstances, laid down the doctrine that the title to a navigable stream above tide-water is in the riparian owners, except where it constitutes a territorial boundary. Now the common law of England was a system of rules and precedents designed for the government of the people of an island. It knew nothing of streams as boundaries between states. The decisions in New York and Iowa are not so inconsistent after all, since it appears that the courts in each state differ merely <n determining what rule is best suited to the wants and conditions of the people. Illinois, as we have seen, has applied the doctrine even to the Mississippi river, which is a state boundary. In addition to Pennsylvania, North Carolina and Iowa!, the following states have refused to be bound by the common-law test of navigable waters: Missouri {Benson v. Morrow et al., 61 Mo. 347; Cooley v. Golden, 117 Mo. 33, 23 S. W. 100, 21 L. R. A. 300) ; South Carolina {Cates v. Wadlington, 1 McCord, 580) ; Tennessee {Elder v. Burns, 6 Hump. [25 Tenn.] 358) , Alabama {The Mayor, &c. of Mobile, v. Eslava, 9 Porter, 477; affirmed in 16 Pet. [41 U. S.] 234); Michigan {La Plaisance Bay Harbor Co. v. City of Monroe,. 1 Walker, Ch. 155). After all, in every case the substantial question is. this, Is the stream navigable or not? Under the common law of England the mode of ascertaining the fact may have been uniform, and the fact that the tide-ebbed and flowed in the stream may always have been taken there as evidence of the fact. Nevertheless, it is the fact of navigability and not the mode of proof upon which the rights of riparian owners should be-made to depend. We have considered the question at length because of its importance and the different view which prevails in some of the states, and for the further reason that it involves what we regard as the most meritorious of the claims urged by the defendants. We adopt the Iowa doctrine, and hold that by the declarations of the-United States in the several acts of congress relating to the survey and disposal of the public lands, and by other legislation relating to the western country out of which Kansas territory was carved (and which are-referred to elsewhere in this opinion and in Wood v. Fowler, supra, and in Dana v. Hurst, supra), the Mississippi river and its navigable tributaries were constituted public highways, and recognized as navigable-streams in the fullest and broadest sense. The supreme court of the United States having repudiated the common-law definition of navigable waters in 1851, and the same test of navigability having been repudiated by many of the states in the Union before the act of the territorial legislature of 1855 adopting the common law was enacted, we hold that the ancient rule of the common law defining navigable waters was never a part of the common law of Kansas; that Kansas entered the Union upon an equal footing with the other states; that upon her admission into the Union absolute property in and dominion and sovereignty over the soils under the navigable and public streams within its limits passed to the state, in trust for all the people, subject to the superior rights of the federal government with respect to navigation. Nor do we think that anything said in Clark v. Allanan, 71 Kan. 206, 80 Pac. 571, holds to the contrary. The question there involved the rights of a riparian owner to the use of water for irrigation purposes from Rose creek, a stream five miles long. It is true, as stated in the opinion, that “the common-law rules in relation to riparian rights became the law of Kansas for every stream within its borders.” (p. 229.) But the common-law test of navigability never became the law of Kansas. The court in Clark v. Allanan was not attempting to define navigable streams, nor was it the intention to declare the law as to the ownership of the bed of meandered navigable streams to be different from what had already been held in Wood v. Fowler, 26 Kan. 682. The defendants possess all the rights of riparian owners under the common law as that law is applicable to Kansas. What we decide is that they never acquired any property interest in the bed of the Kansas river adjoining their lands. It is unnecessary to define their riparian rights under the common law, but one of them is the right of flowage, and as was held in City of Emporia v. Soden, 25 Kan. 588, 34 Am. Rep. 130, 60 Am. Dec. 453, the state could not, if it would, ■deprive them of such rights without compensation. (See, also, New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 Pac. 735, 54 L. R. A. 190.) We are unable to discover any reason why the fact that the sand is mingled with the flowing water of the stream and comes originally from the upper reaches of the Kansas river affects the matter, or how that fact could deprive the state, which is the exclusive owner of the bed, of the right to dispose of any surplus water flowing over it or any natural product found therein, so long as the state does nothing either to violate its duty to hold the title as trustee for the benefit of-the people nor to interfere with the superior rights of congress to control navigation. Because the title to ~the soil is in the state it was said in Wood v. Fowler, 26 Kan. 682: “The riparian proprietor would have no moré title-to the ice than he would to the fish.- It simply is this, that his land joins the land of the state. The fact that it so joins, gives him no title to that land, or to anything formed or grown upon it, any more than it does to anything formed or grown or found upon the land of any individual neighbor.” (p. 690.) Moreover, that sands accumulate upon the bed of the river we know to be a fact. At times of low water the bed is made up largely of bars of sand which are started in motion when the stream rises; and although it is customary in removing the sand to operate the dredges and shovels in running water, the sand taken forms a part of the bed of the stream. In United States v. Chandler-Dunbar Co., 229 U. S. 53, it was said: “Ownership of a private stream wholly upon the lands of an individual is conceivable; but that the running water in a great navigable stream is capable of private ownership is inconceivable.” (p.. 69.) In that case also it was said that there was nothing -objectionable in permitting the state to let out the use of the water to private parties and thus reimburse itself for the expenses incurred in the erection of a public dam. The argument that because the sand is in constant motion it falls within the principle of ferae naturae, and that the defendants can not be deprived of the-valuable right of an individual to reduce to his possession wild animals or things of that nature does not impress us as sound. We have examined the seaweed cases cited, and do not think they support the claim of the defendants.’ They merely hold that seaweed cast, by the tide and waves upon the land of a riparian proprietor becomes his property just as wreckage cast upon his lands belongs to him. (Church v. Meeker, 34 Conn. 421.) Many of the cases are controlled' by statutes conferring certain rights upon the owners of riparian lands adjoining tide-water, such as the case cited in 2 Allen (84 Mass.) 549 (Anthony v. Gifford). The opinion expressly declares that these marine products do not become the property of the riparian proprietor until they are cast upon or attached to the land or shore. There is nothing in chapter 259 which seeks to deprive the defendants of the right to any sand cast: upon their lands. The defendants’ claim by prescription can not be sustained. There is some conflict in the authorities as to whether a right may be obtained by prescription against the public, especially in regard to rights in property dedicated to public use, such as streets and' highways. Some hold that rights of this character-may be acquired, and others that they can not. In Pennsylvania it is settled that public rights are not-destroyed by long-continued encroachments or permissive trespasses. (Kittaning Academy v. Brown, 41 Pa. St. 269. See, also, Commonwealth v. Moorehead, 118 Pa. St. 344, 12 Atl. 424, 4 Am. St. Rep. 499.) In Town of Clinton v. Bacon, 56 Conn. 508, 16 Atl. 548, it was held that the uninterrupted and undisputed possession by defendant of a natural oyster bed'. for thirty years had not given him a title by adverse possession, the title being in the state, against which there could be no title gained by such possession. Moreover, title by prescription arises by a presumption from long-continued use of an incorporeal hereditament of a previous grant which has been lost. (3 Cruise, 467.) Therefore nothing can be prescribed, for that can not be the subject of a grant. (Luttrel’s Case, 4 Coke’s Rep. 84b.) To the same effect see 22 A. & E. Encycl. of L. 1187, where it is stated that the doctrine of prescription is applicable only to rights which may be granted, and that a grant will not be presumed where it could not lawfully have been made. (Hill v. Lord, 48 Maine, 83, 98.) In Sollers v. Sollers, 77 Md. 148, 26 Atl. 188, 39 Am. St. Rep. 404, it is held that title to oyster beds belonging to the state can not be acquired by prescription “Property so held belongs to the people in virtue of their sovereign rights, and of it they can not be deprived save by their own appointment as expressed in the constitution. Legislatures can not imperil such property. Statutes may prescribe for its regulation, but not for its loss by the public and 'its acquisition by individuals by prescription or otherwise.” (Note, 76 Am. St. Rep. 488; and to the same effect see Burbank et al. v. Fay et al., 65 N. Y. 57, and Fulton L., H. & P. Co. v. State of N. Y., 200 N. Y. 400, 94 N. E. 199.) We hold, therefore, that no title to the river could be obtained by prescription. The defendants’ use of the waters of the stream, however long continued, and whether adverse or by permission, could not impair the rights of the state. One of the principal contentions of the defendants is that the state has no proprietary interest in the bed of the streams or the natural products of the waters which it can sell and dispose of. In other words, that if it has the title at all as against these defendants, it holds the title in trust for the benefit of the whole people; and they ask the question: “Can the state sell the bed of a meandered stream, such sale not being for any other purpose than the enrichment of its general treasury?” Now the state has not undertaken to sell any portion of the bed of the streams, and we have not even before us the question as to the power of the state to grant an exclusive right to an individual or corporation to take these sands from the streams. The statute itself, section 2, expressly provides that no contract shall be entered into granting any exclusive privilege under the act. The defendants rely very much upon the decision of the supreme court of Wisconsin in Rossmiller v. State, 114 Wis. 169, 89 N. W. 839, 58 L. R. A. 93, 91 Am. St. Rep. 910. The state of Wisconsin enacted a statute making it unlawful to cut ice from any meandered lake in the state for shipment out of the state unless upon a license obtained from the secretary of state and the payment of a royalty to the state of ten cents per ton. The supreme court held the law unconstitutional on the ground that the right to take ice and to the use of any waters of the public streams and lakes, was for the individual enjoyment of all, without restraint other than by reasonable police regulations designed to preserve their use to the whole people, and that the state, while holding the title in trust, has no. such proprietary interest in the bed of the streams or' the waters over them as it would have a right to sell or dispose of. The state is regarded as a mere trustee for the whole people. We have examined the case with interest, but can not regard it as persuasive upon the question. It is a well-known fact, of which the court requires, no proof, that for commercial purposes the sand of the Kansas river, known everywhere as Kaw river sand,, has long been considered by builders and architects to be unsurpassed on account, of its sharpness and by reason of other natural properties. It is probably true that no other building sand in the country is shipped to. places so distant as the sand from the Kansas river.. Only a limited portion of the people of the state can gain access to the stream and exercise the natural right of taking this valuable natural product from the stream itself. In Kansas all the legislative power that the people possess is vested in the legislature; and the legislature in its wisdom may have believed that the benefit of the whole people and their rights to enjoy this natural product could best be conserved by imposing a royalty upon the taking of sand from the river for commercial purposes, rather than to permit sand companies like the defendants to have unlimited rights therein. The court is well aware of the fact that the state of Oklahoma is leasing for royalties the oil beds beneath the Arkansas river (United States v. Mackey, supra) ; and that in many of the states the right to prospect and obtain the oil and other mineral products beneath the bed of the public rivers is a valuable one. It is stated in the brief of the attorney-general that the states of Wisconsin, Minnesota and Michigan receive enormous revenues from the sale of iron and copper ore taken from the beds of the navigable lakes of those states. We have not examined the statutes or decisions for the purpose of inquiring into the matter, but can see no reason why such rights might not be exercised by the states. The state is the absolute owner of the beds of ■the streams.- It holds the title in trust for all the people and subject to the right of the federal government with respect to navigation. It is not our province to consider the wisdom or expediency of the law passed by the legislature, but we think it is within the power of the state to conserve the use of the products of these streams for the benefit of all the people by exacting a royalty for the benefit of the state. The state owns' the sand and recognizes the right of every person to take freely what he needs for his own use, but requires those who engage in the business for profit to pay a royalty for the benefit of all the people. In Sanborn v. People’s Ice Co., 82 Minn. 43, 44, 84 N. W. 641, it was held that while the taking of ice from public waters was ■one of common right, it was a right only for personal use, and did not extend to an ice company which was ■cutting and removing ice for shipment and sale in distant markets for commercial purposes. In the case of State v. Pacific Guano Co., 22 S. Car. 50, the supreme court of South Carolina upheld the power of the state, holding the title to the beds of tidal waters in trust for all the people, to dispose of phosphate beds as the legislature might deem best for her ■citizens; and a statute by which the state granted rights to different companies to mine in these beds, imposing penalties on those who undertake to do so without such license, was held valid. A similar case was that of Coosaw Mining Co. v. South Carolina, 144 U. S. 550. The case involved the validity of an act of the legislature granting exclusive rights in a corporation to mine in the beds of the Coosaw river, and to remove phosphate rock and deposits. The power of the state to exact royalties for the exercise of such privileges was not •disputed. The defendants, not having shown any title or right to the bed of the streams, are not in a position to object to the manner in which the state seeks to use and dispose of its rights therein. In United States v. Chandler-Dunbar Co., 229 U. S. 58, it was held that inasmuch as the defendant had no property right in the river which has been “taken,” it was not interested in the question of the power of the government to sell the surplus water. It is suggested in the briefs of the attorney-general that we might sustain the law as an exercise by the legislature of its power of regulation, but we do not care to rest the decision upon grounds which would require the court to disregard facts of which it takes notice (The State v. Kelly, 71 Kan. 811, 81 Pac. 450) concerning the circumstances and conditions existing at the time the act was passed. All persons well informed with the history of the discussion at the time know that the principal object sought to be accomplished was to add to the revenue of the state; and there is nothing in the act itself indicating that the question of regulation is not merely incidental to the main purpose of revenue. The defendants claim that the state law is ineffective as against a permit which they hold from the United States authorizing them to dredge sand from the Kansas river. The permit amounts to nothing more than consent that so far as the right of the government to control the stream for the purposes of navigation is concerned the defendants may continue dredging. In this respect it is not unlike the permits or licenses issued by the internal revenue department authorizing persons to engage in the sale of intoxicating liquors in Kansas. It has never been supposed that such a permit furnishes immunity to the holder from prosecution for a violation of our prohibitory laws. The legislative history of chapter 259 shows that it was legally adopted by the legislature. The original bill was known as house bill No. 219. It.was read three times in each branch of the legislature and on separate days. The main objection to the manner of its passage is, that in. the senate the judiciary committee simply reported a substitute for house bill No. 219. It appears, however, that the substitute was germane to the title and that exactly the same result could have been accomplished by returning the original bill and recommending its passage with the amendments. The precise question was before the supreme court of Tennessee in a recent case. (Railroad v. Memphis, 126 Tenn. 267, 148 S. W. 662, 41 L. R. A., n. s., 828.) The language of the court in disposing of the contention is so pertinent that we adopt and approve it. In the opinion it was said: “It is said the committee on municipal affairs simply reported a substitute for House Bill No. 175. The distinction sought to be made between reporting a sub stitute bill and an amendment by substitution is more fanciful than real. As stated, the title of the bill remained the same, and the substitute offered for the original is germane to the title, and is otherwise unobjectionable. The bill cannot be destroyed upon a mere matter of terminology. If it were competent, as is conceded, for the original bill to have been amended by substitution, so as to ingraft upon it the same matter that was contained in the substitute bill, we can see no substantial reason why it is not just as permissible to offer the same subject-matter under the original title as a substitute for the original bill.” (p. 298.) Whatever rule may obtain in other states, in Kansas “an enrolled statute imports absolute verity and is conclusive evidence of the passage of the act and of its validity, unless the journals of the legislature show affirmatively, clearly, conclusively and beyond all doubt that the act was not passed regularly and legally, and this rule applies to the title as well as to the body of the act.” (The State v. Andrews, 64 Kan. 474, syl. 1, 67 Pac. 870.) The title to the act is as follows: “An Act relating to the sale and taking of sand, oil, gas, gravel, mineral and any natural product whatsoever from the bed of any river which is the property of the state or any island therein, and relating to the taking and sale of hay, timber and other products of lands lying in the bends of such rivers; prescribing certain powers and duties of public officers in relation thereto; and prescribing penalties, and repealing inconsistent legislation.” Under the authority of The State v. Barrett, 27 Kan. 213, The State v. Brooks, 74 Kan. 175, 85 Pac. 1013, Bank v. Pearce, 76 Kan. 408, 92 Pac. 53, and decisions cited in the opinions in those cases, it must be held that the title contains but one subject and is broad enough to cover every provision contained in the act. It would be sufficient if the title had read, “An act relating to the sale and taking of sand from public streams within the state.” Whether the legislature may provide, as section 8 of the act purports to do, that cértain evidence shall be prima facie proof of a fact material to be established in order to warrant a conviction in a criminal case need not be determined. No such question is involved here. Were it conceded that the legislature has no such power it could avail the defendants nothing. It is expressly provided in section 9 of the act that if any provision be held unconstitutional the judgment shall not affect the other provisions, and without this provision it would be our duty so to declare. The certificates of the officers of the house and senate with the presumptions which will be indulged in favor of the regularity of the act are sufficient to show that it was presented to the governor within proper time and duly signed. (Aikman v. Edwards, 55 Kan. 751, 42 Pac. 366.) The contention that the act attempts to confer judicial power upon executive officers is answered by numerous decisions which need not be reviewed. The executive council is an administrative body, and it is well settled that the legislature. may create agencies to carry laws into effect, and that where judgment or discretion is exercised as a mere incident to a ministerial power there is no commingling of judicial and executive powers. {The State v. Railway Co., 76 Kan. 467, 92 Pac. 606, and cases cited in the opinion.) We have considered all of defendants’ numerous objections to the act of 1913, and find no ground upon which we would be justified in declaring it repugnant to the constitution of the state; and since the defendants never acquired, either by grant or prescription, any right or title to the bed of the Kansas river, nor any right to the sand in the bed and channel of the stream, the act does not deprive them of any property rights and can not be considered as in conflict with any of the provisions of the constitution of the United States. The defendant F. J. Schwartz is in no way interested in this litigation since it appears that he has voluntarily paid the royalties without protest. His motion is sustained and the action will be dismissed as to him and judgment given in his favor for costs. As to all the other defendants, judgment will be entered for the plaintiff, and the peremptory writ will be allowed.	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The opinion of the court was delivered by MASON, J.: This is an action brought to obtain an interpretation of the will of Nathaniel Salisbury. The vital question involved is whether it violates the rule against perpetuities. It provides for placing a stated sum in the hands of a trustee to be invested in real-estate mortgages, the interest to be paid quarterly to the testator’s son, Floyd. Provision is made for substitution in case of the death of thé trustee. The part of the will the effect of which is in dispute relates to the disposition of this fund, and is contained in a paragraph reading as follows: “If my son, Floyd Salisbury should die leaving no issue, then the trust or trusts named in this will shall revert to my wife, if living, or if dead, or at her death, to my surviving heirs equally. If my son Floyd should die leaving issue surviving, this trust shall remain operative during the lifetime of said issue, but at the death of such issue this trust is to be terminated, and the trust herein named shall revert to my surviving heirs.” It is urged that by virtue of the second sentence of this paragraph Floyd is to have the beneficial use of the fund for his life, and then his children are to enjoy it for their lives, and upon their death, and not until then, the title is to vest in the surviving heirs of the testator; that inasmuch as Floyd might have a child bom after the death of the testator the vesting of the title might be postponed for a longer term than the life of a person in being and twenty-one years additional, thus violating the.rule against perpetuities. It is sometimes said that a will is to be construed as though no such rule existed, and the intention of the testator having been thus ascertained, the rule should be applied. (30 Cyc. 1498.) But we think where the language used is ambiguous the courts should prefer a construction which upholds the will, rather than one which defeats it. (Klingman v. Gilbert, 90 Kan. 545, 549, 135 Pac. 682.) This will is valid if its purpose is to vest a title to the fund in the testator’s heirs at the time of his death, or at the time of Floyd’s death, although the actual possession and enjoyment is to be postponed until the death'of Floyd’s children, the rule being the same whether the property affected is real or personal. (30 Cyc. 1474, 1481.) We think the will is open to that construction, and should be so construed. Obviously in framing it words were not used with technical accuracy. “Trust” designates the fund which is the subject of the trust, and “revert to” is employed in the sense of “go to.” In the case of a gift to heirs of the testator, the members of a class are to be ascertained at the time of the testator’s death, if the context permits. (40 Cyc. 1481, 1511.) And in any event a construction is preferred which results in the earliest possible vesting of an estate. (40 Cyc. 1650.) The term “surviving heirs,” consistently with the intention of the testator, may refer to his heirs who survive Floyd. Where it is first used it must have that meaning, for provision is there made for the disposition of the fund if Floyd survives the testator’s widow and dies without issue. It seems reasonable to give it the same meaning throughout the paragraph. Under this construction, upon the death of Floyd the persons will be in existence who are to have the property immediately upon the death of his children. Their title to it, therefore, is to .vest at Floyd’s death, the possession, and enjoyment of it being postponed. (40 Cyc. 1648.) The judgment is affirmed.	[ -75, 124, -36, 28, 10, 96, 42, -104, 113, -88, 39, 81, 121, 90, 84, 47, -14, 75, 113, 99, -44, -9, 23, 16, -46, -13, -45, -43, 53, 77, -10, 95, 76, 32, -120, 85, 102, -117, -55, -42, 14, 1, 10, 101, 89, 96, 48, 119, 16, 79, 69, -37, -77, 34, 25, -26, 104, 44, -37, -87, 80, -72, -118, -123, 111, 15, 49, 39, -68, -29, 88, 44, 16, 17, 9, -24, 115, -74, -106, 116, 107, 9, 9, 98, 103, -111, 109, -25, -80, -118, 14, -122, -115, -121, -110, 121, 41, 41, -73, -98, 124, 52, -122, 116, -26, 29, 31, -84, 17, -49, -42, -95, -115, 60, -70, 9, -14, 83, 48, 113, -54, -86, 93, 99, 117, -103, -121, -2 ]
The opinion of the court was delivered by Burch, J.: At the trial in the district court the plaintiff relied on the existence of certain pleaded facts as the basis of the equitable relief which he demanded. The existence of those facts was denied by the defendant. Evidence was introduced by both parties bearing upon the issues of fact thus raised. The result was a conflict in the evidence, essential portions of which were oral. The journal of the court shows that the court determined these issues in the following manner: “Now on this 14th day of December, 1912, this cause came on for hearing, the plaintiff appearing by L. W. Keplinger, his attorney and the defendant appearing by Hale & Higgins, his attorneys, and the evidence being heard and the arguments of counsel, and the Court being fully advised doth find for the defendant on the-issues joined.” In disposing of the case on appeal this court said:: “The plaintiff relied on two facts to furnish the necessary equitable basis for relief. These were that the suit in Arkansas was maliciously brought to harass the plaintiff and obstruct the administration of justice, and that the character of the plaintiff’s business, in Arkansas was of a certain kind. If of that kind, it is argued that the plaintiff was privileged from the service of civil process. The court has found both these facts against the plaintiff on conflicting evidence,. essential portions of which consisted of oral testimony. That ends the controversy over the facts.” (Mason v. Harlow, 91 Kan. 807, 808, 139 Pac. 384.) In the petition for a rehearing it was declared, in the face of the record to the contrary, that the district court did not find the facts against the plaintiff, and, in further dispute of the record, the plaintiff filed the affidavit of his attorney, containing the following matter: “That at the time Judge F. D. Hutchings rendered his decision in the court below he stated in substance that he attached no significance to the claim made by the defendant that Mason was not in Arkansas for the purpose bf taking depositions at the time the suit was brought against him in that state, but that it was his opinion that an attorney at law was not privileged from service of process while attending upon a judicial proceeding in a foreign jurisdiction. That if we could show that the common-law privilege from the service of process extended to attorneys he would reverse his decision.” The petition for a rehearing was denied without a formal opinion because it did not seem necessary to state the principle applied in the opinion quoted from, or to state the equally well settled principle that the record can not be impeached by extrinsic evidence as to the grounds upon which the trial court rested its judgment. There ought to come a time as the years go by when the court may be relieved from stating the same elementary principles again and again. The plaintiff, however, continues to assert that this court misstates the facts when it says the trial court found the issues of fact in favor of the defendant, and a desire has been expressed for a statement of the court’s reasons for overruling the petition for a rehearing. Responding to the desire indicated, the court will first reprint here a part of the opinion in the case of Knaggs v. Mastin, 9 Kan. 532, decided in 1872, and which has never been departed from “The action was tried by the court below without the intervention of a jury. The court found generally for the defendant and against the plaintiffs. No special findings of either law or fact were made by the court. A few of the facts are admitted by the pleadings, but the most of them are controverted. A few more of the facts may be said to be admitted by the evidence, as the evidence concerning them is clear, conclusive, and all one way. But a very large proportion of the facts, probably a majority of them, is not only controverted by the pleadings, but is also controverted by the evidence — the evidence concerning them being conflicting and contradictory. Where the facts are admitted by the pleadings, or where the evidence concerning them is clear, and all one way, we shall take the facts as so established, whether they are in favor of the plaintiffs or the defendant. But where the facts are controverted by the pleadings, and the evidence concerning them is conflicting and contradictory, we shall consider that they have been established in favor of the defendant and against the plaintiffs. Where facts are established by a general finding of a court, it must always be presumed that all the controverted facts are established in favor of the party for whom the court finds, and against the party against whom the court finds. Therefore, whenever some of the facts might be found in favor of one of the parties, and some of them might be found in favor of the other party, it would be prudent at least for any party who had doubts concerning his case to request that the court should make special findings of fact and of law. (Civ. Code, §290.)” (p. 542.) , With reference to the impeachment of the record, the court will reprint here a part of the opinion in,the case of Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469, in which not simply the defeated litigant, by ex parte affidavit, but the court itself undertook to limit a general finding by a statement inserted in the bill of exceptions. “Notwithstanding this general finding in favor of Mrs. Arnold, plaintiff relies upon a statement inserted by the trial judge at the close of his certificate to the bill of exceptions, which statement is as follows: “ ‘But it must be understood that the court did not pass adversely to defendant upon the additional grounds for dissolution of attachment stated in her motion, but simply held that the evidence showing that the defendant Clara B. Arnold did not even know of the indebtedness sued on at the time of making the conveyance complained of. There was no evidence of fraudulent intent, and consideration of other questions was unnecessary.’ . . . “Where the journal entry of judgment is complete it speaks for itself and controls. A general finding in favor of one party is a finding in his favor on every issue raised by the pleadings and supported by any evidence. “If the court in fact only decided that there was no fraudulent intent on the part of Mrs. Arnold, the judgment should have so recited. The statement in the certificate to the bill of exceptions can not narrow the effect of the general finding in favor of defendant Clara B. Arnold, which was that the property sought to be taken by attachment constituted her homestead, as well as a finding to the effect that the only ground of attachment relied upon was wholly untrue.” (pp. 252, 253.) The Kansas reports contain many decisions of the same tenor. They rest upon the absolute necessity for certainty and conclusiveness in the final record of judicial proceedings. The result is that the plaintiff, after omitting to ask the trial court for findings of fact and of law, carried his affidavit to the wrong court. If the record in the district court does not speak the truth he should have applied to that court to correct it. So long as the record in the district court stands as it is, it shows a finding of all the disputed facts against the plaintiff, and this court is obliged to accept that finding as true. To fulminate against the court for stating the record is simply to rebel against the law which afforded the plaintiff easy remedy, if he had applied for it and was entitled to it. The plaintiff cites the case of Readicker v. Denning, 87 Kan. 523, 125 Pac. 29, the syllabus of which reads as follows: “Upon a suggestion, which appears to be well founded, that a judgment had been affirmed upon a different theory of the facts from that entertained by the trial court, the affirmance is set aside and a new trial ordered.” In that case this court misconceived the evidence. Having been left in the dark because of the absence of special findings, it concluded that a certain fact was included in the general finding. It was then shown that the conclusion was not well founded and that the fact involved was not disputed. This being true, the fact was not among those which were covered by the general finding based on conflicting evidence. (See opinion in Knaggs v. Mastin, quoted above.) The difference between the two cases is that in the Readicker case this court misinterpreted the record, and upon being corrected followed the record. In this case it is seriously proposed to nullify a clear and unambiguous record by a contradictory affidavit and have the court reverse the judgment on the affidavit. Even the liberality of the new code will not permit this to be done. While it is purely obiter in the present state of the case, the court will take this occasion to say that it considered the plaintiff’s claim that he was privileged from being sued in Arkansas while he was there to secure evidence for his client and to take depositions for use in Kansas. The conclusion was that the plaintiff was not privileged. The privilege from arrest is not universally recognized, and where recognized it usually extends only to attendance upon a sitting of court as an officer of the court, including going to and returning from the place where the court is held. The exemption from service of ordinary civil process, where recognized, is commonly limited in the same way. (2 R. C. L. 952.) The notion that the taking of depositions on simple notice is a constructive adjournment and translation of the Kansas court to Arkansas is too attenuated to serve the purposes of justice rationally administered, and the impolicy of permitting conduct which will deter parties, witnesses, and attorneys from attending court does not obtain. This court is not able to say that the courts of Arkansas recognize the privilege claimed so that the privilege may furnish ground for equitable relief here. The plaintiff objects to the use in the second opinion of the expression, “the libel was published, however, in Arkansas,” notwithstanding the fact that the statement was immediately followed by the sentence, “The cause of action arose there and must be sustained, if at all, by the testimony of witnesses who reside there.” To remove any cause for sensitiveness the word “alleged” may be considered as inserted before the word “libel.” The denial of the petition for a rehearing is adhered to.	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The opinion of the court was delivered by Johnston, C. J.: Whether the building occupied and used by the Omega chapter of the Kappa Kappa Gamma sorority, a society composed of young women who are students of the University of Kansas, is subject to taxation is the question presented for determination. The title to the real estate stands in the name of the Kappa Kappa Gamma House Association, a corporation “organized not for profit, and . . . the purposes for which it is formed are: to acquire and manage property, both real and personal, for the furtherance of educational, social, benevolent and charitable purposes among such women of the University of Kansas as are now or may hereafter become members of the Omega Chapter of Kappa Kappa Gamma.” The ground on which the building was erected was purchased for $1650 and paid for from voluntary sub scriptions made by the young women who were members of the society and students of the university and by their friends and relatives. From the same source they raised the sum of $2000 which was used in the construction of the chapter house. The house cost approximately $17,500 and to complete it the society borrowed the sum of $15,500. Upon the completion of the building the young women of the society, students in the university, took possession of it and have occupied it ever since. The furniture placed in the building was purchased by voluntary subscription of the members and through donations from friends of the society and of the university. The building has been used exclusively as a literary hall and dormitory. It has been principally used as a dormitory, but from time to time the members of the society have held literary exercises in a large room set apart for that purpose. No lease was ever executed by the House Association nor has any rent ever been paid by the society for the use of the building as the corporation was only organized to act as trustee for the members of the society, that is, to hold the title to the real estate and to execute a mortgage thereon that would be accepted as security for the money advanced to complete the house. The mortgage debt was placed in notes of small amounts under the agreement and plan that the young women would obtain subscriptions and that these, together with initiation fees for admission into the society, should be devoted, as they were obtained, to the payment of the mortgage debt. The officers of the county listed the real estate for taxation and were proceeding to enforce the payment of the taxes assessed against it when this action of injunction was begun. Under the facts, which were agreed upon, the trial court held that the property was exempt from taxation and granted a permanent inj unction against the assessment and taxation of the .property. These facts fairly bring the case within the statutory exemption. The statute provides that: “All real estate not exceeding one-half acre in extent and the buildings thereon situate, and used exclusively by any college or university society as a literary hall or as a dormitory, if not leased or otherwise used with a view of profit, and all books, furniture, apparatus and instruments belonging to such society, shall be exempt from taxation.” (Gen. Stat. 1909, § 9218.) The validity of the statute is not challenged, and there can be no question as to the character of the society, the use to which the property is devoted, nor any contention that it falls within any of the constitutional or statutory restrictions on exemption. According to the agreed facts the building is exclusively used by a society of the university as a literary hall and as a dormitory and the purpose of the society is that such exclusive use shall continue for an indefinite period, and that it is not leased or otherwise used for profit. It is contended that the property does not fall within the exemption because the title to the same is not in the society itself. It is true the legal title has been placed in a corporation as a matter of convenience, but the corporation- is only acting as a trustee and is holding the property for the benefit of the members of the society who are the real owners, as well as the users, of the property. However, it is not essential to an exemption that the title to the property shall be in the society. Neither the statute nor the constitution in any way recognizes that the exemption depends upon title or ownership. Complete title in the society without the use mentioned would give it no right to an exemption, nor could the ownership be accepted as evidence of the exclusive use mentioned in the statute. In an early case it was determined that use, and not ownership, is the test of the exemption. (Washburn College v. Comm’rs of Shawnee Co., 8 Kan. 344; see, also, Vail v. Beach, 10 Kan. 214.) In Missouri, under a constitutional and statutory provision, that lots in cities used exclusively for schools should be exempted from taxation, .it was decided that: “The ownership or title to the property is not the determining factor. For if the property is owned by a religious, charitable or school organization and is leased or rented for use for any other purpose than such as the Constitution contemplates, the land is not exempt. So, if the private owner of the land allows his land to be used for such purposes and charges no rent and derives no personal benefit from the land, the land is exempt from taxation, because the land is then devoted exclusively to such a use.” (State, ex rel., v. Macgurn, 187 Mo. 238, 86 S. W. 138.) In Kentucky there was a constitutional provision that places actually used for religious worship and the grounds appurtenant to the house of worship, not exceeding one-half acre in extent, should be exempt. A church organization leased property and was using it for religious worship, and in an attempt to subject the property to taxation it was ruled that: “The constitution does not make the exemption depend upon the title. . . . It is the use of the property, and not the ownership, which determines the question of exemption. ... To hold that the congregation must be the absolute owner of the property used exclusively for religious worship in order to create the exemption would be to inject words into the constitution, and to narrow the exemption which it expressly makes.” (City of Louisville v. Werne et al., 25 Ky. L. Rep. 2196, 80 S. W. 224, 225.) It is said that its membership is limited and that not all young women who attend the university can gain admission to the society and receive the benefits of the exemption. The record does not disclose who are eligible to membership in the society nor the rules governing the selection of members. All the young women ■who are students of the university may not be able to gain admission to the Kappa Kappa Gamma society, but so far as the record shows other similar societies may be organized without limit by the students so that all may have adequate dormitory facilities. When they do organize and acquire a building used exclusively for a literary hall or dormitory they too will be entitled to the benefit of the exemption. The fact that the chapter house is not open to the public or to any one who may apply for admission does not deprive the society of the statutory exemption. (Masonic Home v. Sedgwick County, 81 Kan. 859, 106 Pac. 1082.) It is enough that the membership of the society is made up from the class defined in the statute, that is, students at colleges or universities, where the building occupied by them is devoted solely and strictly to the prescribed uses. It is true, as the defendants contend, that the statutory exemption should receive a strict construction and that those claiming the exemption should bring themselves clearly within the terms of the statute giving it. But giving the statute the narrowest and strictest interpretation of which its terms are reasonably capable the exemption is available to the society. It was the evident purpose of the legislature to encourage the construction and use of dormitories so as to provide homes for the nonresident students at colleges and universities. No reason is seen why this beneficent purpose of the legislature may not be effectually carried out. The judgment of the district court will be affirmed.	[ -15, -6, -100, -20, 10, 96, 122, -104, 98, -127, 53, 87, -23, -54, 4, 111, -79, 109, -48, 109, -123, -73, 7, -23, -108, 91, -13, -51, -79, 76, -12, 86, 8, -75, -54, -43, -58, -118, 73, 20, -114, 13, 40, -59, -3, 96, 52, 91, 122, 14, 113, -57, -13, 36, 20, 66, 44, 41, -51, 45, -127, -7, -113, -107, 127, 23, 48, 99, -36, -95, -24, 52, -110, 49, 0, -30, 123, -90, 22, 116, 79, -103, 41, 34, 102, 32, 45, -21, -8, -104, 14, 23, -100, -25, -109, 89, 32, 8, -76, 29, 117, 16, 39, 118, -26, 21, -35, 109, 9, -33, -44, -79, 7, -15, -101, 6, -1, -91, 56, 113, -60, 0, 94, -45, 114, 27, -113, -4 ]
The opinion of the court was delivered by Johnston, C. J.: In this action the appellee, Blanche Crecelius, recovered damages from the appellant, The Atchison, Topeka & Santa Fe Railway Company, for injuries resulting from the negligent operation of a switch engine by appellant’s employees. Cherokee street in the city of Leavenworth is one of the main thoroughfares and runs from east to west, and is crosed diagonally by the tracks of appellant, which cross that street in a northeasterly to southwesterly direction. Leading up to the crossing on Cherokee street from the east there is an ascending grade, the grade beginning at a point about twenty-five feet distant from the east rail of the east, or switch, track. About twenty-five feet east of the east rail of this track, and on the north side of Cherokee street, there is located an office and factory building fronting two hundred and eighty-four feet on Cherokee street. From a point in the middle of Cherokee street, and thirty-eight feet east of the east rail of the switch track, a view can be obtained of appellant’s tracks toward the north to a distance of about one hundred and ten feet. On the evening of May 15, 1911, at about six o’clock, appellee, in company with two o.thers, was driving westerly on Cherokee street, and had approached to within about twenty-five feet of the east rail of the switch track, when the horse became frightened at a switch engine crossing the street on the main track, and which was pushing four box cars across that street, causing the horse, which was shown to be gentle, to turn suddenly, overturning the buggy and throwing appellee out and seriously injuring her. In her petition she alleged that appellant’s employees in charge of the engine negligently and unnecessarily permitted steam cocks on the engine to be open and emitting large volumes of steam as it crossed the street; that appellant negligently failed to give any warning of the approach of the train; that the train was run across the street at an excessive rate of speed, and that appellant negligently failed to provide any flagman or watchman at the crossing as it was required to do. The answer of the appellant consisted of a general denial and a charge of contributory negligence against appellee. At the trial the testimony of appellee tended to show that she, with two others in the buggy, approached the crossing, keeping a lookout for cars; that there are buildings which obscure the view on the side of the track where she was approaching; that when she went within five to ten feet of the switch track the engine and cars, approaching on the main track, crossed rapidly without warning; that the horse did not frighten at the box cars as they were pushed ahead of the engine, but that the steam cocks of the engine were open and ejecting large volumes of steam, which were thrown about twenty-five feet and enveloped the horse, frightening it and causing the appellee to be thrown out and injured. Appellant offered testimony to the effect that the steam cocks were not open; that an undue amount of steam was not escaping; that a brakeman was upon the top of the forward box car keeping a lookout, and saw no one approaching the crossing. The j ury found-in favor of appellee, awarding her damages in the sum of $3750 and returning a'number of answers to special questions. It is first contended that the evidence and findings do not show negligence on the part' of 'appellant, but do show contributory negligence of the appellee. The failure of the appellant to keep a flagman and maintain and operate gates at the crossing was taken out of the case as a ground of negligence by an instruction of the court to the effect that the city ordinance did not require these. The principal grounds of negligence were that the engineer allowed the cylinder cocks to remain open as the engine crossed the street, ejecting large volumes of steam and making unnecessary noises, and also running the engine at an unwarranted rate of speed. It is insisted that the evidence does not show that the steam cocks were open or that steam was being unnecessarily emitted or noises needlessly made. There was testimony to the effect that the valves were open and that steam was thrown a great distance from the engine. Aside from the testimony of appellee and those accompanying her that steam was thrown a distance of twenty-five feet, there is the testimony of a witness who drove up on the opposite side of the engine to a point from twenty to thirty feet away from the track, that the steam cocks were open and that steam was thrown over his horse and made an unusual noise. No special findings were asked as to this feature of the case, but in view of the general verdict it must be held, under the testimony offered, that the engineer allowed the cocks to remain open, ejecting'steam a distance of twenty-five feet, making unnecessary and frightening noises while he was crossing the street, and that too while he could have seen that appellee and others were waiting near the crossing for the passing of the engine. He admits that there was no necessity for the opening of the valves of the engine while it was crossing the street. It is true, as contended by appellant, that the right to use engines for the operation of railroads includes the right to use steam, and that in an ordinary careful use of an engine some steam will necessarily escape and some noise will necessarily be made. It is true, too, that the emission of steam is not in itself an act of negligence; and that a railroad company is not liable where horses take fright at the necessary escape of steam or the making of the usual noises accompanying a careful and necessary use of an engine. However, it may be liable for injuries caused by permitting the careless and needless exhaust of steam and the-making of unnecessary noises in operating its trains.. A negligent exercise of a right or the negligent performance of a duty which causes injury can not be-justified. It is no excuse that an act of appellant which causes an injury was in itself lawful, or might be done-in the exercise of a legal right, if the injury arose from, the doing of the thing in a negligent manner and without regard to the rights of others. (Culp v. A. & N. Rid. Co., 17 Kan. 475; Railway Co. v. Bailey, 66 Kan. 115, 71 Pac. 246; 2 Thompson’s Commentaries on the-Law of Negligence, § 1922; 7 Thompson’s Commentaries on the Law of Negligence, White’s Supplement,. § 1922; 2 Shearman and Redfield on the Law of Negligence, 6th ed., § 426.) There is a finding to the effect that appellant was-operating its train in the usual and ordinary manner' at the time of the accident, but it is plain from the-other findings and the verdict that this one does not: relate to the opening of the steam cocks and the ejecting of steam for a distance of twenty-five feet. Such action at a street crossing, even if usual, was unnecessary and negligent. It is contended that appellee was guilty of contributory negligence in driving so close to the track, and that the cars which the engine was pushing must have-been on the crossing at the time appellee drove up to the track. The buildings, as we have seen, obscured', the view of the track to persons approaching from the-east. It was found that if appellee had stopped and looked up the track at a point thirty-eight feet east of the east rail, she could only have seen the train a distance of one hundred and ten feet. According to the- finding,' she did stop twenty-five feet from the main track, and when she reached that point she was able to see the engine about two hundred feet away. There is no finding as to the speed of the train, but there was testimony that it was going rapidly, and one witness ■said it was going faster than he could run. An ordinance of the city limits the speed of engines and trains within the corporate limits to a rate of five miles an hour. The appellant prepared the special interrogatories, but did not submit any as to contributory negligence of the appellee, and the general verdict is, in effect, a finding that she was not negligent. There is .some confusion in the testimony in regard to distances, as some of the witnesses seem to be speaking of the distance to the switch track while others are evidently referring to the distance to the main track. There is, likewise, indefiniteness as to whether they are speaking of the distance to the head of the horse or to the appellee in the buggy. In view of the verdict and the testimony, it ean not be said that the appellee was guilty of contributory negligence. Complaint is made of an instruction in which the court referred to the degrees of negligence, remarking that if the negligence of the appellant was the immediate cause of the injury, the fact that the negligence of appellee contributed only in a remote degree would not defeat a recovery. In other instructions the court advised the jury that it was the duty of appellee to use her sight and hearing to ascertain whether cars were about to pass, before she attempted to cross the track, and if she did ascertain the fact and still drove up so near the track that the engine and train frightened the horse, or if driving too close to the track contributed to the fright of the horse, she could not recover. This rule was in effect stated in three of the instructions. While the division of negligence into degrees is impractical and improper (Railway Co. v. Walters, 78. Kan. 39, 96 Pac. 346), it is quite evident that no preju dice could have resulted from the expression as used by the court to which objection has been made {Sawyer v. Sauer, 10 Kan. 466; U. P. Rly. Co. v. Young, 19 Kan. 488; K. P. Rly. Co. v. Peavey, 29 Kan. 169, 44 Am. Rep. 630; A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919). We find no error in the instruction to the effect that it was the duty of the trainmen to use caution to avoid emitting an unnecessary amount of steam or the making of unnecessary noises when they approached the crossing, if they saw that appellee and her horse were near the track. The testimony justified the submission of the instruction. The judgment of the district court will be affirmed.	[ -16, 114, -8, -81, 10, 96, 50, -104, 97, -95, -92, 83, -115, -119, 4, 113, -53, 77, -47, 43, 100, -77, 71, -29, -110, -45, -13, -51, -69, 72, -12, -10, 77, 16, -54, 21, 102, 74, 77, 28, -50, 37, -23, -28, 89, 40, -68, 122, 54, 79, 81, -113, -13, 42, 28, -46, -20, 41, -21, -87, -63, 113, -118, -123, 101, 4, 33, 36, -100, -95, 76, 61, -40, 53, 9, -68, 115, -90, -109, -12, 105, -117, 72, -26, 98, 33, 21, -17, 44, -120, 14, -70, -115, -25, 34, 25, 51, 97, -106, -99, 48, 18, 7, 126, -1, 5, 93, -12, -127, -117, -80, -93, -49, 36, -110, 23, -21, -91, 48, 96, -35, -96, 93, 71, 50, -101, -97, -68 ]
The opinion of the court was delivered by Johnston, C.. J.: The appellant complained about the height of a dam constructed by appellees across the Arkansas river, and alleged that it had been maintained so high as to flood its right of way. It asked damages for the injuries sustained, and also to enjoin the further maintenance of the dam at the excessive height. The dam was built in 1886 and 1887, and during the same time the appellant’s railroad was constructed along the river. The south end of the dam adjoined the right of way, and it appears that appellant and appellees both obtained their rights in the land occupied by each from the same source. Since the dam was first constructed and the waterpower developed, there have been built in that vicinity mills and light and power plants which are operated by waterpower and which are of the estimated value of $500,000. The appellant contended that in repairing and rebuilding the dam it had been raised to a greater height than it was first built, with the result of throwing the water back on its land and injuring it. The appellees denied that the dam had been built to a greater height than it was in the beginning; they pleaded a statute of limitations, and also that they had been in the open and adverse possession of the land, and had maintained the dam for a period of time which gave them the right by prescription to keep it in its present condition. The principal controversy in the trial court arose over the question whether the dam had in fact been raised to a greater height than it was originally constructed. The trial court, after listening to a large volume of testimony, much of which was conflicting, made a general finding in favor of appellees, and necessarily found every disputed question of fact in their favor. In this appeal attention is called to some of the testimony which, it is insisted, is not in 'dispute and entitles appellant to relief. There is dispute, however, on every vital question of fact in the case. To learn the basis of the court’s finding and judgment we have been compelled to read what is erroneously designated as an abstract of the evidence, but which is in fact a transcript of over four hundred pages containing everything in the case, however formal or insignificant it may be. Some of the witnesses testified, it is true, that the dam is now two feet higher than it was originally built, and some, that it is one and a half feet higher. There is abundant testimony, however, to sustain the finding of the court that it is no higher than when it was first built. The discrepancies in the testimony may perhaps be accounted for to some extent by the fact that the dam had been lowered and partly washed out by high water at different times, and some of the witnesses may have regarded the restoration of the dam as an increase in its height. One witness who declared that it was 1.91 feet above the original height finally disclosed that he referred to its height when he saw it in 1903, sixteen years after it was built. One end of the dam rested on a rock of an enduring character, and this landmark, to which some of the witnesses referred, tended to confirm the testimony of those who said that in rebuilding the dam it had not been raised above the original height. The finding of the trial court settles that question beyond further controversy. There is some contention that appellees had no interest in the land on the bank of the river on which to base an easement, but if it be assumed that there must be a dominant estate as a foundation for the easement, there is testimony in the case that the end of the dam rested on land other than that of the appellant. The judgment of the district court will be affirmed.	[ -15, 106, -75, -84, -86, 96, 56, -102, 65, -93, -11, 83, -113, -101, 28, 113, -25, 45, -16, 123, -58, -77, 23, -14, -45, -13, -5, -33, -79, 108, -28, 86, 76, 1, -54, -43, 102, -62, 85, -48, -50, -105, 9, -19, 89, 64, 52, 123, 116, 78, 53, -65, -13, 41, 24, -62, 41, 44, -21, 44, 81, -16, 10, -116, 95, 4, 49, 38, -104, 3, -24, 28, -112, -79, 0, -68, 115, -90, -122, -11, 105, -101, 8, -14, 98, 65, 125, -49, 44, -120, 6, -33, -115, -90, -110, 24, -54, 65, -66, -99, 112, 22, -26, 126, -1, -123, 95, 108, 1, -118, -78, -95, -121, 32, -110, 3, -61, -95, 34, 100, -123, -62, 92, 69, 115, -97, -114, -72 ]
The opinion of the court was delivered by Johnston, C. J.: The question involved in this proceeding is: Does the failure to keep and produce certain records of a commercial business, as required by the terms of a fire insurance policy, bar recovery in case of loss ? W. A. Hammond, the appellant, brought this action to recover against-The Niagara Fire Insurance Company, the appellee, on a policy of insurance issued by that company upon a stock of merchandise and store fixtures owned by him and located at Towanda, Kan. On July 17, 1911, the appellee, by its agent-, G. W. Moore, issued to appellant the policy of insurance upon his stock of merchandise to the amount of $3300 and upon the fixtures to the amount of $200, and a few days thereafter the appellant paid therefor the premium of $45.50. The policy was standard in form, and in it was a provision which required, among other things, that the insured would keep a set of books which would present a record of the business transacted and keep the books and inventories in a fireproof safe at night or at some place not exposed to fire and to produce them in case of loss, and it also provided that a failure to keep and produce the books and inventories would avoid the policy. About three o’clock in the morning of May 9, 1912, a fire occurred and the books of account, which it appears appellant had been keeping upon the top of a trunk in his sleeping room over the storeroom, and the last inventory, which he kept in the trunk, were destroyed. Appellee’s agent was notified of the fire and an adjuster came and inter-' viewed appellant, but he refused to recommend payment of the loss on account of appellant’s inability to produce the books of account and the last inventory. He, however, suggested that appellant make proofs of loss to the appellee and also inform it as to the books and inventory. This appellant did about May 17, 1912. The loss was not paid, and on July 25, 1912, appellant brought this action asking for a reformation of the policy of insurance striking out that portion requiring the books and inventory to be kept in a fireproof safe, and also for judgment for the amount of the policy. In the proofs of loss made by appellant the value of the merchandise and fixtures was placed at $4800, and on the trial evidence was introduced tending to show that the last inventory, taken in January, 1912, showed the value of the stock to be about $4200 and the fixtures about $300. Evidence was also introduced tending to show that appellant did not know that the fireproof safe clause was in the policy. A demurrer of appellee to appellant’s evidence on the ground that-it failed to show a cause of action was overruled, but after the introduction of additional testimony by appellant to the effect that the safe clause in the policy was put in by the agent without mentioning the fact to appellant the court modified its ruling and sustained the demurrer as to the merchandise but overruled it as to the fixtures. The court directed the jury to return a verdict in favor of appellant for $224 for the loss of the fixtures, and overruling appellant’s motion for a new trial. Judgment was rendered accordingly. He appeals, and here insists that the ruling of the trial court on the demurrer to the evidence as to the keeping and production of the books and inventory is error. The contention is that under the terms of the policy the failure to produce the books and inventories does not of itself avoid the policy nor forfeit the right to recover the insurance. It is insisted that contracts of insurance are to be construed most strongly against the insurer and most favorably to the insured, that forfeitures are not to be enforced unless definitely provided for in the contract, and that as only one of two contingencies upon which a forfeiture depends in this contract has transpired the policy can not be forfeited. Under the conditions of the policy appellant was to keep and produce books and inventories, and he contends that he observed the requirement to keep these and only failed as to their production. Among the conditions of the contract the insured was required to take an itemized inventory of the stock at certain times during the life of the policy. The second condition was: “The assured will keep a set of books, which shall clearly and plainly present a complete record of the business transacted, including all purchases, sales and shipments of said stock, both for cash and credit, from the date of the inventory or inventories provided for in the first section of this clause, and during the continuance of this policy.” In the third condition it was provided that: “The assured will keep such books and last inventory and also the last preceding inventory, securely locked in a fireproof safe at night, and at all times when the building mentioned in this policy, or the portion thereof containing the stock described therein, is not actually open for business; or failing in this, the assured will keep such books and inventories at night, and at all such times in some place not exposed to a fire which would ignite or destroy the aforesaid building; and in case of loss, the assured specifically warrants, agrees and covenants to produce such books and inventories for the inspection of said company. In the event of failure on the part of assured to keep and produce such books and inventories for the inspection of said company, this entire policy shall become null and void and such failure shall constitute a perpetual bar to any recovery thereon.” Appellant did keep a set of books which he says was a complete record of all his business and he did take an inventory as required by the terms of' the policy, and he insists that he only failed as to the production of these. He argues that the policy is to be void only for the failure to do both, and that no penalty attaches for the failure to perform one of the conditions. What is meant by the expression, “to keep and produce”? The word “keep” is a general term which is variously applied and is often used in more than one sense in the same instrument or writing. It may mean to make or enter, or to retain and preserve. It is plain that the meaning of the words “keep a set of books,” as used in the second condition of the warranty, is that the insured shall make and enter in books a record of the business transacted by him. As there used the words have no reference to the preservation and safety of the books when they are made. In the third paragraph of the warranty the word has a definite signification. There it means to hold, care for, or preserve, which is the primary meaning of the word. It implies that the books when made and the inventories when taken shall be preserved as against destruction or loss, and to that end it is provided that they shall be placed or kept securely locked in a fireproof safe at night and when the store is not open for business, or, in the event that this is not done, that they shall be kept in a place not exposed to fire which would ignite or destroy the store building. The coupling of inventories with books in the third paragraph tends to strengthen the view that the word “keep” implies preservation, because the keeping of an inventory does not convey the idea of taking or making one, but rather the preserving of it from destruction. The keeping provided for in the third paragraph requires that the books and inventories shall be cared for and preserved so that they can be produced and in case of loss furnish some evidence as to the extent of the loss sustained by the insured and of the liability of the insurer. Some comment is made on the action of the agent in including this clause in the policy without the knowledge of the insured. It is not contended that there was any fraud or deception practiced by the agent. The clause is one common in policies insuring merchandise- and it is conceded that it serves a useful purpose. In speaking of this clause it was said in Insurance Co. v. Knerr, 72 Kan. 385, 83 Pac. 611: “It is not an unreasonable precaution; it is one with which the insured might very easily have complied. In any event, the parties making the contract agreed that it should be performed by the insured, and since it is a part of the contract it can not be ignored or arbitrarily set aside. It is generally held that neglect on the part of the insured substantially to comply with a clause in an insurance policy to keep the books used in conducting the insured’s business in an iron safe, or in some place where they will not be destroyed in case the place in which the insured stock is kept is consumed by fire, will avoid the policy.” (p. 387.) It is said that the agent visited the store building and looked over its contents, and hence had an opportunity to see that there was no iron safe in the building. The agent testified that he did not observe whether or not there was a safe in the building, but that he had no discretion as to the iron-safe clause, as this is a part of the policies in all of the companies represented by him, and that he had no authority to write any other kind of a policy. Even if he had been informed that there was no safe in the store at the time, it would not, in the absence of fraud, relieve the insured from compliance with a plain requirement of the contract. In such a case it would have been his duty to have procured one or else have used the care specified in the alternative provision of the clause. This question was involved in Insurance Co. v. Knerr, supra, and there it was said that: secure place not exposed to a fire that would destroy the building in which the insured property was kept.” (p. 389.) “Conceding that the agent issuing the policy was familiar with the insured store building and stock, and knew that the insured did not keep an iron safe, and that he issued the policy knowing the existence of these conditions, that could not be construed into a waiver of the obligation of the insured to keep the books at night, and when the store was not open for business, in some (See, also, Insurance Co. v. Stahl, 72 Kan. 578, 83 Pac. 614.) We think the trial court correctly interpreted the contract of insurance, and that the insured failed to keep and produce the books as he had agreed to do, and, further, that compliance with this requirement was essential to a recovery under the policy. We find nothing in the testimony that would have warranted the court in reforming the contract by striking out the clause in question. The judgment of the district court will be affirmed.	[ -16, 126, -8, -115, -118, 96, 42, 75, 67, -95, 37, 83, -51, -62, 12, 101, -41, 125, -15, 106, -26, -77, 30, -86, -34, -5, -15, -123, -79, 125, -4, 84, 76, 32, -118, 5, 38, 64, 69, 84, 78, 8, 56, -19, -3, 120, 52, 123, 36, 71, 81, -109, -29, 58, 16, -42, 77, 40, -21, -87, -47, -15, -85, -123, 127, 21, 49, 36, -104, 7, -56, 12, -112, 53, 0, -20, 115, -90, -122, 100, 101, -87, 33, 102, 99, 33, 21, -21, 124, 8, 38, -126, -99, -92, -112, 88, 35, 9, -65, -99, 53, 22, -121, 126, -84, -43, 92, 44, 5, -113, -76, -93, -53, 108, -104, 6, -33, 35, -78, 113, -49, -24, 92, 69, 125, 27, -98, -35 ]
The opinion of the court was delivered by Smith, J.: This action has been tided three times in the district court. On the first trial the jury failed to-arrive at a verdict; on the second trial verdict and.judgment were for the plaintiff, and an appeal was taken to this court and the judgment was reversed. (Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498). The questions there presented are practically the same as are-now involved. The judgment was then reversed for the failure of the trial court to submit a disputed question of fact, viz., whether a person who employed the workmen and superintended the operation of a gypsum mine was an independent contractor or the superintendent for the owner. On the third trial the question was submitted to the jury upon the evidence, and it was found that Drake was the superintendent and not an independent contractor, and judgment was rendered against the owner as well as the superintendent. From, this judgment both Drake and the gypsum company-appeal. The general statement of the facts in controversy is the same now as before, and is sufficiently stated in the former opinion, supra, to give an understanding of the issues involved; also, the several propositions.of law stated in the first, second, third, fourth, fifth, seventh and eighth paragraphs are pertinent to this decision and are adopted as the law of this case. The-sixth paragraph now becomes immaterial, because the question of fact was submitted to and passed upon by the jury. The eighth paragraph, relating to the sufficiency of the evidence, still coincides with the views of the court, although the evidence is somewhat different than it was on the former trial. The appellant makes several assignments of error, the first and second of which are based upon the propositions that the mine was operated by Drake as an independent contractor of the appellant company, and that the company did not assume control of the mine, and hence was not responsible for the injury and death of appellee’s husband. By the pleadings the issue was fairly presented. The appellee desired to prove that the appellant company had accident insurance in the Travelers Insurance Company upon the workmen employed at the time of Laffery’s death; as bearing upon this fact the appellee introduced a written and printed report which was signed by “J. E. Drake, Supt. United States Gypsum Co. Mines.” This report was mailed by Drake to the appellant company and by the appellant company to the insurance company. It is contended that Drake, whatever his relationship - was, could not by any declaration or act subsequent to the accident bind the company. The report does not purport to bind the company, but does purport to show that the accident occurred through the fault of the deceased. In connection with the other evidence, especially the use made of the report by the appellant company, it was properly admitted as tending to prove that Drake was such superintendent and not an independent contractor. The appellee also introduced various correspondence between the appellant company and the insurance company and the policy of insurance issued to the appellant. The question of its relevancy is determined by the seventh paragraph of the syllabus of the former opinion. The first and second assignments of error constitute, in effect, a demurrer to appellee’s evidence and a request for an instruction for appellant. There was no error in the ruling involved. As indicated in the former opinion, if Drake was an independent contractor and -the company retained no-control over the work or workmen, the relation of master and servant did not exist between the appellant company and the deceased, and the company would not be responsible in damages for the accident. This, however, is subject to the exception that if the contract between the company and the contractor required the performance of work, intrinsically dangerous however skillfully done, the eompany as well as the contractor might be liable. This question is not for our consideration if the finding that the relation between the gypsum company and Drake was that of -employer and employee, and not of owner and contractor, is -fairly sustained by the evidence. The jury found, in substance, that there was a contract between the gypsum company and Drake that Drake was to mine the gypsum at forty-five cents per ton, but that the contract was not made in good faith; that, in fact, Drake was the superintendent of the mine for the company at the time of the accident and was not an independent contractor. It is contended, however, that there is no competent evidence to support these charges. Drake reported the death of Laffery on a blank of the Travelers Insurance Company and sent it to the appellant company. He signed it as superintendent of the gypsum company. It is ux-ged that this could not be evidence as it tended only to relieve him of responsibility and place it upon the company. The gypsum company, however, forwarded the report to the insurance company. There is no claim that Drake had any accident policy upon the employees, while there was evidence that the appellant coxnpany had such a policy. All the correspondence between the appellant company and the insurance company which was introduced in evidence manifested an interest on the part of the appellant in the insurance. A policy of insurance was finally introduced in evidence, running from the-Travelers Insurance Company to the appellant company, by which the insurance company undertook to-pay the appellant certain sums in the event of loss by-reason of injury to the employees at the mine in question. The policy purports to be in force from December 13, 1904, for one year. The accident occurred February 20, 1905. The policy, however, was not attested by the president and secretary of the insurance company until February 21, 1905. It contained a provision that it should not be binding upon the insurance company until countersigned by Phister and Wright, general managers, duly authorized agents of the company at Chicago, 111. Whether the policy was in force at the date of the accident is entirely immaterial to this action as a matter of evidence. If the appellant company applied for insurance against liability for which it might become liable for injuries to the laborers at the mine, and made such application before the accident and thereafter received the policy, it amounts to a recognition that. such laborers were its workmen to the same extent that it. would had such policy been fully executed and received by it before the accident; there is no evidence that the-insurance company denied liability thereon or that it. admitted such liability. There was evidence that the. policy was received by the' appellant company. If the laborers generally and the deceased were workmen for the appellant company, they were not workmen for-Drake as an independent contractor. There was sufficient evidence to justify the submission of the question to the jury and to justify a finding by the jury that Laifery, at the time of his death, was in the employ of the appellant company. We have examined all the questions raised upon the introduction of evidence and the alleged misconduct of the court and find no substantial error therein. There was some incompetent evidence admitted, of, witnesses called by the. appellee, but generally it-was so clearly shown on cross-examination to be irrelevant that no prejudice resulted to the appellant company from its admission. Probably much of it would have been stricken out had application been made therefor after the matter in question had been fully developed. The complaint is made that the court expressed its opinion on the weight of the evidence previously given during the progress of the trial, but the modification made by the court at the time, and the instructions given, fairly gave the jury to understand that the weight and effect of the evidence was for the determination of the jury and not for the court. No prejudice resulted to the appellant from the remark. Objection is made, also, to remarks of counsel for appellee in summing up the case; that counsel therein indicated just what answers should be made to certain questions, and that the jurors adopted the answers indicated in answering several of the questions submitted. After the evidence is concluded and the court has given its instructions in an action, it is the province of counsel on either side to review the evidence which has been presented in a light favorable to their respective clients, and by every fair means to convince the jury that their verdict, as well as the answers to special questions submitted, should be made favorable to the party for whom the address is being made. We can not say that the privilege of counsel was abused in this respect, nor that the answers to the special questions submitted, although in accordance with statements of counsel, were not supported by the evidence. We find no substantial error in the trial, and find that the verdict and judgment were supported by sufficient evidence. The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: The appellee, Paul D. Cole, a minor, by his next friend, George W. Cole, brought this action against appellant, The Atchison, Topeka & Santa Fe Railway Company, to recover damages for injuries suffered in falling from the top of a refrigerator car. It appears that Cole was employed by appellant as a clerk at its station at Anthony. As a part of his duties it appears that he was to oversee the sealing of cars, and that on or about Thursday, October 5, 1911, in company with another workman was engaged in sealing vent doors on the top of refrigerator cars. About thirty cars were to be sealed each day, and on the day in question a string of the cars were so coupled that next to the one on which appellee was standing and from which he fell was a furniture car the top of which was about two and one-half feet higher than the top of the refrigerator car. It was about seven o’clock in the evening and darkness had fallen. It appears that part of these cars were bound for points in Oklahoma and that others on which appellee had worked had either come from or were bound to Oklahoma points. Appellee was standing about five feet from the end of the' refrigerator car in a stooping posture holding a lantern to enable his companion to properly seal the vent door, and while in this position another car was shunted against the string with such force that appellee was thrown to the ground. Appellee sustained injuries alleged to be permanent in their nature and for which he asked damages in the sum of $5000. At the trial the jury returned a general verdict in favor of appellee and special findings of fact in which it was found that he was damaged in the sum of $3000, but that by reason of his own negligence, which contributed to the injury, the amount was reduced one-half and he was-awarded, the sum of $1500. Appellant .alleged and' claimed that the injury was the result of appellee’s' negligence in that the sealing of the cars should have' been done in the daytime while he chose to do it in the' nighttime; also that he was aware of the fact that trains were switching in the yard and took no precaution to notify the switching crews of his presence on the cars and did nothing to protect himself, arid, further, that the appellant had been released from any claim for damages on account of the injury. The first claim of error is that appellee was permitted to recover under the state statute when he had alleged and proven a cause of action under the federal law. The petition of appellee does state that the appellant was engaged in interstate commerce and that the refrigerator cars which were being sealed were used in interstate traffic. At the opening of the trial a question arose as to whether appellee was seeking a recovery under the federal or the state law, and appellant asked that the appellee be required to elect under what law he was proceeding. The court held that he was not compelled to make an election, but that he was bound to prove the cause of action alleged in his petition, which, it was stated, appeared to be a cause of action under the federal law. On the conclusion of appellee’s testimony a demurrer to his evidence was filed, and the court ruled that the evidence introduced was not sufficient to show that appellee was engaged in interstate commerce at the time of his injury. Appellee then asked and obtained permission to offer further testimony on that issue, and the testimony offered showed quite clearly that the cars which were being sealed were being used in interstate traffic. The court, however, ruled that the proof was insufficient to prove a liability under the act of congress, but that it was sufficient to go to the jury- under the employers’ liability statute of Kansas. It appears that appellant was insisting in the district court that the proof did not establish a liability under the federal law, but it is now contending that the proof offered tended to pr.ove that appellee was engaged in interstate rather than intrastate commerce at the time of his injury. When a state of facts is set up which come fairly within the federal act, and the proof sustains the averments, the liability must be determined by the provisions of that act. When congress'acts upon the subject of interstate commerce and regulates the relations of employer and employee engaged in that kind of commerce, its action is, of course, supreme and exclusive, and any state statute in conflict with the congressional act must give' •way. (Nashville &c. Railway v. Alabama, 128 U. S. 96, 9 Sup. Ct. Rep. 28, 32 L. Ed. 352; Mississippi R. R. Com. v. Illinois Cent. R. R., 203 U. S. 335, 27 Sup. Ct. Rep. 90, 51 L. Ed. 209; The Employers’ Liability Cases, 207 U. S. 463, 28 Sup. Ct. Rep. 141, 52 L. Ed. 297; Mich. Cent. R. R. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. Rep. 192, 57 L. Ed. 417; St. L. & San Francisco Ry. v. Seale, 229 U. S. 156, 33 Sup. Ct. Rep. 651, 57 L. Ed. 1129; Fulgham v. Midland Valley R. Co., 167 Fed. 660; State v. Chicago, M. & St. P. R. Co., 136 Wis. 407, 117 N. W. 686; State v. Railroad, 212 Mo. 658, 111 S. W. 500; Fernette v. Pere Marquette R. Co., 175 Mich. 653, 141 N. W. 1084, 144 N. W. 834.) The ruling of the court on this provision, however, may not be very important, as the provisions of our statute, as well as its language, do not differ materially from those of the congressional act, and the evidence offered by appellee was pertinent to the issue as it was originally joined under the federal law. So far, at least, as this appeal is concerned, the holding of the court can hardly be regarded as prejudicial error. There is reason to complain, however, of the rulings of the court on special questions. The court refused to submit the vital question, “If you find for the plaintiff in this action, in what respect do you find that the defendant, its officers and agents and employees were negligent?” Another question, asking the jury to find what act or omission on the part of the defendant caused the injury, was likewise refused.. .This was an important question of fact that was within the issues of the case and upon which competent testimony had been offered, and the appellant was entitled to have it submitted to and answered by the jury. • (W. & W. Rld. Co. v. Fechheimer, 36 Kan. 45, 12 Pac. 362; A. T. & S. F. Rld. Co. v. Ayres, 56 Kan. 176, 42 Pac. 722; Barker v. Railway Co., 89 Kan. 573, 132 Pac. 156.) The court might also very well have submitted the question Why the sealing of the cars was not done before it became dark, and also what precaution appellee had taken to safeguard himself against the accident, when he knew that trains were switching in the yard. The error in the refusal to submit these questions is emphasized somewhat by the inconsistencies in the answers given by the jury to other special questions. The jury found that appellee was chargeable with contributory negligence, and that by reason of that negligence the damages which he sustained, to wit, $3000, was diminished to $1500. Under the employers’ liability law contributory negligence of the employee is not a defense to the negligence of the employer, but it may be considered and the damages sustained may be diminished in proportion to the amount of negligence attributable to the employee. Now, the negligence charged against the appellee was his act in sealing the cars after dark instead of doing it in daylight, and in failing to keep a lookout when switching was being done in the yard, and to take precaution to protect himself when cars were backed against the one on which he was working. The j ury, however, specifically found that the appellee was not guilty of negligence in going upon the cars after dark, and that while it was his duty to keep a lookout for switching trains and engines in the yard, that he, in effect, did keep a reasonable lookout for them. The jury cut his recovery one-half because of his negligence, and yet by these answers declared that he was not negligent. Another finding is that appellee knew that trains were being switched in the yard when he was upon the refrigerator car engaged in sealing it, and yet in another finding the jury said that he could not have safeguarded himself against the accident if he had been watching for the backing of cars upon the track where he was at work. These findings are inconsistent with each other and with the general verdict. There is complaint of the instructions, but no substantial error is found in them. For the error in refusing to submit important questions of fact and for the inconsistencies in the special findings returned by the jury the judgment must be reversed and the cause remanded for a new trial.	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'The opinion of the court was delivered by Porter, J.: The case in the district court was an action in ejectment. The case was tried to the court and .judgment given for the plaintiff. The defendant appeals. The land in dispute is a strip twenty-six feet wide at ■the east end, forty-one feet wide at the west end, and is •off the north side of a forty-acre tract belonging to the plaintiff. The defendant owns the forty acres adjoining the plaintiff on the north and was in possession of the strip of land, claiming that F. J. Crawford, from whom the plaintiff purchased, had verbally agreed with ’him that a fence should be- built on the line of an old .fence between the two tracts of land and that the fence ¡should be the boundary line, and that after the erection of the new fence Crawford and the defendant each ¡occupied and farmed the land up to the fence on his •own side. Plaintiff obtained his title by a warranty •deed from F. J. Crawford and Laura A. Crawford, his wife. His grantors were occupying the land as a home.stead at the time that F. J. Crawford made the verbal ¡agreement with the defendant. The facts were found by the trial court, among which are that a legal survey was made by the county surveyor in 1903, which located ■the line between the two forties twenty-six feet north •of the east end and forty-one feet north of the west end ■of the fence. The court expressly finds that- up until the time of the survey the respective owners of the two ■forties had understood and believed that the old fence was on the true line-; that the agreement between the defendant and F. J. Crawford regarding the dividing line between their lands was not in writing and was without the knowledge or consent of Laura A. Crawford, the wife of F. J. Crawford; that the verbal agreement was made after the survey and after both knew the location of the true line. Upon these facts the court held, as a conclusion of law, that the plaintiff is the owner and entitled to the possession of the strip of land in dispute. One of the questions argued is whether or not parties may by verbal agreement settle the location of a line fence after they actually know the location of the true boundary between their lands. It is said in the briefs the trial court ruled that because the agreement was not in writing and was not made until after the true line was known from the legal survey it was not a settlement of any dispute, but would amount, if anything, to a conveyance of real estate, and was therefore void under the statute of frauds. In the article on “Verbal Agreements” in 29 A. & E. Encycl. of L. 881 it is said: “Where there is a dispute as to the true division line between adjoining proprietors, or the line is uncertain and they are both ignorant as to its true location, an agreement under which a permanent boundary line is fixed and possession is taken is binding though not in writing.- Where, however, the boundaries are established they can not be altered unless the agreement therefor is in writing.” Many cases are cited in support of the text and none is cited to the contrary. The same rule is declared in 5 Cyc. 932, and in 8 Cent. Dig., title “Boundaries,” § 216 and cases cited. Probably the weight of authority supports the doctrine as stated. It is not believed that any of the decisions from our own court holds to the contrary, al-though some of them, among others Steinhilber v. Holmes, 68 Kan. 607, 75 Pac. 1019, states only the general rule that parties may by verbal agreement fix boundary lines and thereafter acquiesce in the lines so agreed upon, and that such an agreement followed by possession is not obnoxious to the statute of frauds. In Parks v. Baker, 81 Kan. 351, 356, 105 Pac. 439, it is stated in the opinion that there had been a doubt respecting the true line at the time the oral agreement was entered into. In Sheldon v. Atkinson, 38 Kan. 14, 16 Pac. 68, the opinion states that the true boundary line was not known and was a proper matter of settlement and adjustment; and that this fact distinguished the case from those where the corners and boundary lines are known and visibly marked. (See, also, Peterson v. Hollis, 90 Kan. 655, 136 Pac. 258, and cases cited.) It will be observed that the court in the present case found generally for the plaintiff, and, in part at least, on the ground that without the knowledge and consent of Laura A. Crawford, the wife of F. J. Crawford, the strip of land in question, being a part of their homestead, could not be conveyed by the verbal agreement or contract. The defendant contends that Mrs. Crawford was estopped by her conduct from setting up any claim herself, and that the plaintiff is bound by her estoppel. We have been unable to find anything in the evidence which, in our opinion, would have justified a finding that she was estopped from claiming the land in controversy under her homestead rights, and it may be said that all the facts found by the court are supported by evidence. Mrs. Crawford testified in substance that she knew of the survey and where the line was, and knew of her husband and Baker building the fence and where they built it; but she nowhere testifies that she knew of or consented to the agreement upon which the defendant relies. The court finds that it was made without her knowledge and consent; therefore, she never assented to it, and the fact that she made no claim to the land while Baker, the defendant’s grantor, was in possession would not estop her from claiming her homestead right. The plaintiff purchased from her all her right and title, and while not entitled to claim the benefit of the homestead exemption as a personal privilege, it has been decided that he may, for the purpose of establishing his own title, show that when he purchased the land it was a homestead; and, of course, he may rely upon the legal proposition that the compact or arrangement with Crawford was made without her joint consent. (Howell, Jewett & Co. v. McCrie, 86 Kan. 636, 655, 14 Pac. 257; Elwell v. Hitchcock, 41 Kan. 130, 132, 21 Pac. 109.) The land being a part of the homestead, the agreement or contract with the husband,, made without the joint consent of the wife, was ineffectual, and upon this ground alone the plaintiff was-entitled to judgment. It is needless, therefore, to determine the question as to the statute of frauds. The case was tried without a jury, and it will be presumed that no incompetent testimony was considered by the court. We have carefully considered, as no doubt the court did, the evidence offered in support of a motion for a new trial, and think the motion was properly overruled. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: Lee Wallace was convicted of the sale of intoxicating liquors, and appeals. When the case was called for trial the county attorney was allowed to endorse upon the information the names of a number of additional witnesses, including that of the witness upon whose evidence the conviction was had. The defendant complains of this ruling, but it was within the discretion of the court. The application for leave to endorse the names had been made two days before; no continuance was asked on account of it, and it does not appear that any prejudice resulted. The witness referred to testified that at a certain time he had bought whisky of the defendant. The defendant did not testify. A motion for a new trial was filed on the ground that two witnesses had subsequently been discovered who would testify that at the time designated they had heard the witness referred to ask the defendant for some whisky and had heard the de fendant tell him he had none. We do not think the affidavits to this effect required the granting of a'new trial. A new trial was also asked upon the ground that during the deliberations of the jurors one of them had said: “How are we going to square ourselves with the people in the face of so many witnesses, if we don’t convict.?” This is not such misconduct as to require a reversal. On the hearing of the motion for a new trial the county attorney, on request of the court, filed an affidavit stating that at the time he filed the information he had knowledge of the sale upon which the defendant was convicted. Whatever bearing the fact may have had upon the matter under consideration, there was nothing improper or prejudicial in its thus being made of record. The judgment is affirmed.	[ -16, -18, -20, 29, 10, -32, 42, -4, 64, -85, 38, 115, -83, -38, 12, 123, -21, 107, 85, 105, -46, -89, 22, 65, -10, -77, -118, -59, -75, 111, -10, 121, 12, -80, 10, -43, 102, -52, -57, 88, -50, 5, 57, -26, 88, -112, 52, 51, 70, -117, 113, 28, -93, 46, 28, -53, 41, 44, 75, 29, 80, 120, -118, -115, -17, 2, -77, 22, -100, -89, -8, 46, 24, 49, 1, -24, 115, -74, -122, 116, 9, -103, 12, 102, 99, 1, 85, -17, -88, -8, 47, 63, -99, 39, -39, 25, 73, 32, -106, -35, 103, 60, 7, 84, -20, 85, 121, -84, 7, -113, -106, -79, -55, 60, -128, 7, -53, 3, 16, 97, -51, 126, 92, 116, 113, -99, -123, -106 ]
The opinion of the court was delivered by Benson, J.: The plaintiff seeks a writ of mandamus to require the defendants to levy a tax upon property in the township to pay a judgment rendered in an action for damages suffered because of a defective highway. (Super v. Modell Township, 88 Kan. 698, 129 Pac. 1162.) The defendants aver their willingness to make the levy if they have the power, but plead lack of authority. Section 9584 of the General Statutes of 1909 provides that the township trustee “Shall superintend all the pecuniary concerns of his township, and shall at the July session of the board of county commissioners, annually, with the advice and concurrence of said board levy a tax on the property in said township for township road and other purposes, and report the same to the county clerk, who shall enter the same on the proper tax-roll in a separate column or columns, and the treasurer shall collect the same as other taxes are collected; but in a failure of such trustee and commissioners to concur, then the board of county commissioners shall levy such township road and other taxes.” The township made levies in the year 1913 of three-fourths of a mill on the dollar for general township purposes, and for road purposes one and one-fourth mills on the dollar. It is contended that a tax to. pay this judgment would be for a special purpose not provided for in the statute, and for which no authority exists. A judgment rendered upon a debt incurred for ordinary municipal expenses does not change the character of the indebtedness and is payable out of a fund levied for general revenue purposes. (Ward v. Piper, 69 Kan. 773, 77 Pac. 699; Railway Co. v. City of Humboldt, 87 Kan. 1, 123 Pac. 727.) Damages for injuries caused by a defective highway are not ordinary township expenses. The liability was created by statute enacted in 1887 (Gen. Stat. 1909, § 658), but no special provision was made for levying taxes to pay such claims. The defendant insists that the authority is given by the section first quoted, providing for levies for township, road, and other purposes, and this we conclude is the right interpretation. “Township purposes,” as the term is used in this statute, is the equivalent of general revenue purposes, or ordinary current expenses. The expression “road purposes” carries its own definition, leaving the words “other purposes” to apply to obligations not included in the other classification. In Railway Co. v. Kansas City, ante, p. 300, 140 Pac. 1040, it was held that a tax levied to pay a judgment against a city which was rendered upon a claim outside of current expenses was valid, although the full amount of taxes for general revenue purposes was also levied, where the entire tax did not exceed the limit for all purposes. So far we have considered the question under the authority given by section 9584 of the General Statutes of 1909, quoted above. Consideration must, however, be given to another statute, enacted in 1909, viz.: “The trustees, treasurers and clerks of the several townships in the several counties of the state of Kansas shall constitute township boards for their respective townships, and such boards shall have power and authority to determine and fix the levy and rate of taxation in their respective townships for township purposes, and said township boards are hereby authorized and empowered annually, at their regular meeting on the last Saturday in July, to levy a tax of not to exceed three-quarters of one mill on the dollar of all taxable property for township purposes.” (Gen. Stat. 1909, § 9423.) It will be seen that this act provides that levies of township taxes shall be made by the township board instead of being made by the trustee with the advice and concurrence of the county board, as before, and that taxes for township purposes shall not exceed three-fourths of a mill on the dollar. This limitation does not include all township purposes, for in the next section of the same act (Gen. Stat. 1909, § 9424) it is provided that the township board may levy taxes to an amount not exceeding three-fourths of a mill on the dollar to improve roads. As the power to levy taxes for township, road and othér purposes existed before the act of 1909 was adopted, and that act does not in terms or by necessary implication take away the existing authority to levy taxes for other purposes, it remains to be exercised by the township board. As the judgment is a valid obligation, but not payable out of the fund levied for ordinary township purposes, and a levy to pay it is not prohibited by any limitation, the levy should be made. The plaintiff asks and is allowed damages to the amount of a reasonable attorney’s fee, which is found to be $100. This allowance is made under section 723 of the civil code. A peremptory writ will be issued as prayed for, but considering the taxable value of the property in the township and the sums to be raised for other purposes, the amount of the judgment, with interest thereon, and costs and damages may be provided for by three annual levies, the first to be made at the proper time for levying taxes this year.	[ -10, -22, -8, -4, 74, 98, 50, -118, 89, -79, 53, -13, -17, -118, 4, 39, -2, -69, 112, 106, 85, -78, 87, -117, -74, -77, -47, -59, -78, 77, -10, -16, 76, 48, 10, -107, 102, -125, 69, -98, 14, -114, -117, 69, -39, 64, 52, 121, 18, 77, 49, -113, 115, 46, 24, 107, 41, 40, 89, -81, -63, -78, -66, -107, 127, 4, -95, 38, -100, 71, -24, 10, -104, 25, 0, -24, 123, -90, -126, 116, 41, -103, 9, 98, 98, 17, 37, -19, -8, -103, 14, -45, -99, -121, -106, 88, -110, -81, -106, -97, 84, 86, -57, 126, -27, 5, -37, 108, 5, -118, -12, -13, -113, 116, 26, 64, -49, 35, 48, 97, -62, 86, 91, 71, 50, 27, -98, -36 ]
The opinion of the court was delivered by Portee, J.: The plaintiff is the daughter of Samuel and Permelia Slater. In 1872, when she was two years old, her mother died. H. P. Bishop and Catherine Bishop, his wife, were living at Holton at the time; they were about 40 years of age and had no children. They entered into a written contract with the father of the plaintiff by the terms of which they were to take the plaintiff as their own child, educate and provide for her, and at their death she was to have all their property; she was. to take the name of Bishop, and it was agreed that her father, brothers and sisters were not to disclose their identity until she was grown. She lived with the Bishops as their child and never knew that she was not their daughter until she was past nineteen years of age. Soon after this she was married under the name of Bishop. H. P. Bishop died intestate in 1892. His widow, Catherine Bishop, sometime thereafter conveyed to plaintiff the home consisting of two lots in Holton and the household goods. Catherine Bishop died in 1911, being at the time the owner of considerable personal property, consisting of moneys, 'notes, bonds and mortgages. She had made a will devising all her property to the defendants, who are her relatives. The will was probated and an administrator of her estate appointed by the probate court. Plaintiff brought this action for specific performance of the contract. In addition to a general denial, the answer alleged that there never had been any contract to make the plaintiff the legal heir of the Bishops but that she was taken by them to be raised as their child; that the Bishops had expended large sums of money in educat ing her-and in providing her a home; that when she learned that she was not their daughter she lost affection for them and became disobedient; that she married against their advice. The court found that the contract made by her father for her benefit was fully carried out by the plaintiff and decreed specific performance. The principal error complained of is that the court erred in permitting the plaintiff’s father to testify to the contents of the written contract without a sufficient foundation for secondary evidence. The plaintiff testified that she had read the contract and had possession of it when she was 19 years old. She also testified: “I put it in my desk; my furniture was shipped to Texas and it was lost in it; never saw furniture again; it was in drawer; have not seen contract since; got it from my mother, Mrs. Bishop.” Among the cases cited is C. K. & N. Rly. Co. v. Brown, 44 Kan. 384, 24 Pac. 497. In that case it was stated in the opinion that no evidence had been offered tending to show that the writings had been lost or destroyed or that any search had ever been made for them. The evidence here shows the loss of the contract, and moreover a loss under such circumstances that it would seem to have been useless to make any search. We think the same rule should apply as where a paper is shown 'to have been lost in the mails. In such a case it has been held that proof of the loss is sufficient to let in secondary evidence. (Shaw v. Pershing, 57 Mo. 416.) However, it appears that no objection was made to the testimony on the ground that a sufficient foundation had not been laid, nor was plaintiff cross-examined on the subject. Her statement that the- contract was lost when the furniture was shipped to Texas seems not to have been questioned on the trial. The only objection to the testimony as to the contents of the writing was that it was incompetent. The objection was properly overruled. It is insisted that because Catherine Bishop left nothing but personal property the suit can not be maintained; that plaintiff had an adequate remedy at law to recover the value of the property. Modern- courts have shown a tendency to depart from the old rule that there can be no specific performance of a contract except for the conveyance of real estate, and have enforced contracts of this character relating to personal property. Where there has been part performance, and especially where the services rendered are of a peculiar character which the parties never intended to be measured by pecuniary standards, the courts recognize no distinction between personal property and real property and will grant relief in either case. See cases cited in the opinion in Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, 9 L. R. A., n. s., 229, where the facts were very similar to those in the present case, and where specific performance was decreed involving property both real and personal. The opinion cites Sharkey v. McDermott, 91 Mo. 647, 4 S. W. 107, 60 Am. Rep. 270, in which specific performance was granted covering all the property subject to testamentary disposition at the time of the death of the person who agreed to devise to the plaintiff. We think the testimony was sufficient to sustain the finding of the court that the contract was made substantially as claimed, and that the'plaintiff had fully complied with its terms and was entitled to specific performance. The judgment is affirmed.	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The opinion of the court was delivered by Burch, J.: The action was commenced by Béeler to quiet his title to a tract of land against the claims of Elwell and Sinclair. The defendants recovered and the plaintiff appeals. On September 25, 1894, a tax deed of the land from Hodgeman county to the Howard Investment Company was duly recorded. By mesne conveyances the tax title passed to Sinclair. On August 27, 1903, a sheriff’s deed of the land was issued to the plaintiff, based on a sale made under an execution issued upon a judgment rendered against Sinclair. Sinclair then took a lease from the plaintiff and has since continued to occupy the land. Elwell purchased the so-called patent title; that is, he is a grantee of the owner whose default occasioned the sale for taxes on which the tax deed is founded. The plaintiff’s petition was filed on January 25, 1911, and was substantially in the statutory form.' Sinclair answered that the sheriff’s deed was void because the summons was served two days after the return day, and because the judgment was taken prematurely. No affirmative relief was asked. ,Elwell answered that the proceedings resulting in the tax deed, which was valid on its face, were defective in that certain taxes for the support of the state university were wrongfully included in the taxes for which -the land was sold. No affirmative relief was asked. The court set aside the tax deed, adjudged Elwell to be the owner of the land, gave the plaintiff a lien for taxes paid, and rendered judgment against him for costs. The plaintiff was clearly entitled to judgment against Sinclair. The defects in the proceedings on which the sheriff’s deed was based rendered it voidable, but not •void. There are numerous decisions of this court establishing the principles involved, and the defendant, ■Sinclair, does not impugn them. His position is, that by bringing an action to quiet title the plaintiff opened his sheriff’s deed to attack for irregularities in the proceedings on which it is based, the same as if it were a tax deed, and that the plaintiff can not use the five-year statute of limitations forbidding an attack on the sheriff’s deed, which was valid on its face, for the purpose of securing affirmative relief. The position is untenable because of the strict application of the doctrine of collateral attack to judicial proceedings. The plaintiff requires no assistance from the statute of limitations. It is of no consequence whether the sheriff’s deed be more than five years old or less than five years old. The only way in which the irregularities complained of could be attacked was by the direct method of motion-in the original cause, or appeal. They are not open to review in this collateral proceeding. The evidence relating to the plaintiff’s possession was meager, but the defendants had nothing to offer on the subject, and the fact may be taken as established. It is said that an action to quiet title does not lie in the plaintiff’s favor against Sinclair, because Sinclair, as a tenant, is estopped to dispute the plaintiff’s title. A landlord can not in equity prosecute a suit for the purpose of concluding his tenant with reference to matters concerning which public policy will not allow the tenant to speak. Having obtained possession from the plaintiff, Sinclair can not say that he holds in opposition to the plaintiff, and he can not refuse to return possession to the plaintiff on the ground that the title under which that possession was secured is defective. The estoppel, however, extends to those matters only which affect the relations growing out of the lease, and there is no valid reason why an action to quiet title, or other proper action, may not be prosecuted and defended for the purpose of settling disputes concerning title which leave the relations of landlord and tenant presently unaffected. While there are sporadic cases- to the contrary, such is the general rule. The following quotations show attempts to formulate such a rule: “So long as the title of the landlord is the same as it was at the time the tenancy was created, and the tenant is not disturbed in his possession, it is immaterial whether the title of the landlord was a valid one, in so far as the estoppel of the tenant to attack it is concerned. “The estoppel may be enforced both by courts of equity and by courts of law. It can be asserted ordinarily only in actions involving the use or possession of the land, and not in actions in which the title itself is put in issue, such as actions of trespass to try title and for partition.” (24 Cyc. 942.) “The cases in which questions in regard to the estoppel of the tenant to deny his landlord’s title have arisen have been chiefly actions by the landlord to recover possession after termination of the lease, as actions of ejectment, or summary proceedings, or actions for unlawful or forcible detainer. “The rule that the tenant is estopped to deny his landlord’s title is limited to suits for the possession only, and does not apply in an action of trespass to try title, or for partition, in which the title is put in issue. “Nor does the rule apply where the landlord seeks to recover possession through a writ of entry.” (18 A. & E. Encycl. of L. 421.) “As applied to the relation of landlord and tenant, ejectment is strictly a possessory action, and the tenant or those claiming under him are, so long as the lease continues or as he or they hold over, estopped to deny the landlord’s possessory right, and hence proof of title on the part of the landlord is not requisite for the maintenance of an action for the recovery of the possession. But it has been held that if the landlord goes further, and claims the premises in fee, the tenant is not es-topped from denying any right claimed from the landlord further or greater than that of possession.” (10 A. & E. Encycl. of L. 511.) The judgment in favor of Elwell setting aside the tax deed was clearly wrong. If Elwell had claimed affirmative relief of this character the plaintiff could have replied that it was barred by the statute of limi tations, and the court was not authorized to grant relief not prayed for which could have been successfully resisted if prayed for. Section 266 of the taxation act (Gen. Stat. 1909, § 9479), provides that a tax deed, not a tax deed plus possession, vests in the grantee an absolute estate in fee simple, and the owner whose title is thus cut off has but five years from the date the tax deed is recorded, if it be valid on its face, in which to begin suit to set it aside (§ 270, Gen. Stat. 1909. § 9483). Section 272 of the same act reads as follows : “Any person putting on record any tax deed shall be deemed to have set up such a title to the land described in such deed as will enable the party claiming to own the same land to maintain an action for the recovery of the possession thereof against any person claiming under the deed, whether such person is in actual possession of the land or not.” (Gen. Stat. 1909, § 9485.) These statutes place the holder of a recorded tax deed, valid on its face, in the situation of a claimant of title in fee simple in actual possession. This was the situation of the plaintiff and his predecessors in interest for seventeen years next preceding the commencement of the present suit. Besides this, the plaintiff has been in actual possession for a number of years: By virtue of the statutes referred to the legal equivalent of every element of adverse possession exists, and, aside from this, under no circumstances except default of the plaintiff to answer could Elwell succeed in a suit brought by him to recover the land. In the case of simple adverse possession an action to quiet title may be maintained after the lapse of fifteen years. The title and the equity of the plaintiff are much stronger than they would be if based on simple adverse possession, and the sword and shield doctrine becomes very much attenuated when applied to them. The distinction between building up or strengthening a title and protecting such title as the plaintiff already possesses approaches the vanishing point. In view of the facts, the only just and reasonable thing to do appears to be to settle the title to this land. Therefore, the judgment' of the district court is reversed and the cause is remanded with direction to quiet the plaintiff’s title against both defendants.	[ -16, 126, -40, -100, 26, 96, -86, -71, 105, -117, 35, 119, 47, -56, 9, 53, -13, 109, 117, 106, 86, -78, 3, -93, -46, -77, -45, -35, -75, -52, -10, 70, 76, 48, 66, 117, -25, 66, 77, -36, -114, -121, 59, 68, -39, -64, 52, 27, 64, 79, 65, -49, -13, 34, 20, 67, 41, 44, 75, -71, 80, -72, -65, -123, 79, 23, 49, 4, -104, -61, 104, -118, -110, 61, 9, -24, 115, -74, -106, -12, 9, -101, 40, 38, 99, 33, 109, -17, -8, -104, 14, -1, 13, -90, -128, 88, 35, 40, -74, -99, 117, 16, 71, 118, -18, -107, 25, 108, 13, -49, -42, -125, -81, 106, -126, 3, -33, 35, 48, 113, -58, -58, 92, 67, 58, 27, -113, -8 ]
The opinion of the court was delivered by Mason, J.: F. E. Wood, the father of two children, who had been under the care of their maternal grandparents, N. F. and Harriet Shaw, on July 26, 1911, brought action in the district court asking to be awarded their custody. His petition was denied, and he appeals. The mother of the children died March 30, 1907, one of the children, a boy, being then two years old, and the other, a girl, but four days old. From that time they lived with their grandparents, the respondents. In the following October the father and the grandparents executed a written contract which recited that the latter had assumed the care of the children because of their love for their dead daughter, and agreed to give them proper care suitable to their station in life. The agreement included provisions that the father should pay one hundred dollars a year toward their support; that he should have a right to visit with them at any time, he might desire, to take them with him at all reasonable times, and to enjoy their companionship as fully as possible under the circumstances, care being had to promote their best interests; that he did not permanently surrender all his rights as a parent over the children, and that the grandparents understood that they were not given permanent control of them; that the children might remain with their grandparents until they were fourteen years old. In February, 1910, the father remarried. On several occasions thereafter he desired to take the children with him temporarily, but did not do so because of objections made by Mrs. Shaw, upon grounds connected with their welfare, which she regarded as sufficient. Some disagreement followed. In July, 1911, he took the children for a drive, leaving the impression that he would return with them shortly. He kept them over night. The next day she retook them during his absence. He then brought this action. The grandparents are now about sixty years of age. The evidence shows that they have provided a good home for the children, and given them every care and attention.. There seems to be no ground for criticism of their conduct, beyond the fáct that Mrs. ShaW caused the boy to be enrolled in school under the name of Nattie Shaw instead of Nattie Wood, and may at times have erred in judgment in objecting to the father’s taking the children with him. One witness testified that Mrs. Shaw said that by the time the children were fourteen years old they would not want to leave, but would want to stay with her; this however can not be regarded as proved. On the other hand, there is nothing in the record that challenges the fitness of the father and stepmother to care for the children. The father is criticised for practicing the subterfuge already referred to, and for not displaying greater interest in the children, but the record discloses nothing challenging the fitness of himself or his wife to have the care of the children. It seems clear that with either family a good home would be provided. The agreement referred to is not controlling, because the custody of the children is not a matter to be determined by contract. (Chapsky v. Wood, 26 Kan. 650; Notes, 27 L. R. A. 56, 41 L. R. A., n. s., 578, 42 L. R. A., n. s., 1013.) There is no substantial controversy as to the important facts' of the case. The court is of the opinion that there is nothing in the circumstances of the case to overcome the natural claim of the father to the custody of his children, inasmuch as his right is not subject to be contracted away, and has not been forfeited by any misconduct; that the present arrangement affords no such superior advantage to the children as to offset this consideration, especially in view of the fact that after seven years more they were in. any event to be returned to him. The judgment is therefore reversed and the cause remanded with directions to award the custody of the children to the petitioner.	[ 113, 124, -36, 124, 26, -32, 10, 88, 94, -31, -95, 87, -53, 127, 21, 105, 123, 109, 80, 106, -45, -77, 22, -95, -110, -13, -15, -35, -79, 109, -75, 94, 72, 32, 10, -47, 98, -126, -51, 80, 14, 5, -72, -83, 89, 82, 52, 121, -102, 73, 53, 30, -73, 42, 28, -57, 44, 46, -35, 56, -112, -72, -118, -105, -49, 26, -109, -26, -78, -91, 72, 36, 24, 49, -128, -24, 51, -76, -122, 116, 93, -87, 9, 114, 102, 1, -3, -25, -72, -104, -50, -2, -115, -90, 20, 120, 34, 69, -74, -71, 124, 80, 47, 122, -29, -123, 28, -28, 12, -113, -42, -95, -51, -70, -104, 9, -21, 99, 34, 113, -54, -78, 92, 71, 112, -103, -106, -70 ]
The opinion of the court was delivered by West, J.: The petitioner alleges that he is illegally restrained of his liberty by the superintendent of the state asylum for the dangerous insane; that on May 16 he was acquitted in the district court of Wyandotte county on the charge of murder in the first degree, the verdict being, “We the jury find the defendant not guilty on the ground that he was insane at the time he shot deceased, Edith Beebe;” that after the return of the verdict the petitioner filed a written application in the district court for an inquiry as to his mental condition, which was refused. The contention is made that the finding of insanity at the time of the shooting does not justify the court and the superintendent in restraining him of his liberty, which could only be done rightfully upon adjudication of his mental condition at the time of the trial. It was stated in the argument that the insanity at the time of the shooting was temporary in its nature, but it was not so designated in the verdict, which we must consider as an ordinary finding of insanity. In the Clark case (In re Clark, 86 Kan. 539, 121 Pac. 492) the statute (Laws 1911, ch. 299) under which the commitment was made was held valid as against the attacks therein made upon its constitutionality. Section 4 provides that whenever any person under indictment or information, and before or during the trial and before the verdict is rendered, shall be found by the court or by the commission, or another jury impaneled for the purpose of trying such person, to be insane, an idiot or an imbecile, and unable to comprehend his position or make his defense, he shall forthwith be committed to the asylum in question for safe treatment until he shall recover. Section 5 provides that whenever during the trial of any person evidence is introduced to prove that he was insane when the offense was .committed, and he shall be found to have been insane at the date of the alleged offense, and is acquitted on that ground, “the jury or the court, as the case may be, shall so state in the verdict and in said case it shall be the duty of the jury to pass specially on the question of the sanity of the defendant, and the court shall thereupon, forthwith commit such person to the State Asylum for the Dangerous Insane for safe-keeping and treatment, and such person shall be received and cared for at said institution. No such person so acquitted shall be liberated therefrom, except upon the order of the court committing him thereto and until the superintendent . . . shall certify in writing to such committing court that in his opinion such person is wholly recovered and that no person will be in danger by his discharge.” In In re Brown, 39 Wash. 160, 81 Pac. 552, 109 Am. St. Rep. 868, 1 L. R. A., n. s., 540, a statute was held valid which provided that upon a return of a verdict like the one involved herein, “if the discharge or going at large of such insane person shall be considered by the court manifestly dangerous to the peace and safety of the community, the court may order him to be committed to prison.” (p. 163.) From a footnote it appears that in a number of the states the power to commit, based upon a mere finding of insanity at the time the offense was committed, is deemed to be in contravention of the constitutional safeguards, .the theory being that neither the court nor the legislature can rightfully commit for insanity one who is actually sane, but who at some former time has been insane. This act provides for an asylum for “mentally infirm and dangerous” persons. Authority is given to transfer insane prisoners from the penitentiary and reformatory, and to place in this institution inmates of the other state hospitals who have homicidal tendencies or whose presence is dangerous to the other inmates. Coming to criminal cases, it is plain that section 4 has direct reference to insanity at the time of the trial, and none whatever to insanity at the time the offense was committed, while section 5 provides that after an acquittal on the ground that the defendant at the time the homicide was committed was insane, idiotic or imbecile, the court “shall thereupon, forthwith” commit such person. It is argued that the requirement that “in said case it shall be the duty of the jury to pass specially on the question of the sanity of the defendant” means a finding as to his present sanity. The difficulty with this construction is that the next clause would make it the imperative duty of the court to commit such person regardless of the way in which the jury might have passed on the question of his present sanity, which is utterly inconsistent with the notion that the commit ment is to be contingent on the result of such action. There was evidently an attempt to follow somewhat the wording of the Minnesota statute (Revised Laws of Minn. 1909, § 5376), providing that after acquittal on the ground of insanity when the offense was committed the court shall forthwith commit to the “proper- state hospital or asylum,” and whenever in the opinion of such jury or court such person at the time of the killing had homicidal tendencies, this also shall be stated in the verdict or upon the minutes, whereupon the court must commit to the “hospital for the dangerous insane for safe-keeping and treatment.” But in section 5 of our statute there is but one commitment contemplated, and that to the asylum for the dangerous insane. It is apparent that the legislative thought and intent were that one recently so insane as to kill another should be deemed unsafe to be at large and a proper subject for care and treatment in the asylum in question until shown to have been restored to sanity or to be no longer dangerous. Thus construed, the statute, as said in the Clark case, “gives protection to the public against . . . irresponsible frenzy or distraction, and affords to the unfortunate persons so committed safe seclusion and humane treatment, which it is the province of the state to give in the exercise of its parental power.” (86 Kan. 553.) No means are provided for any evidence or hearing as to present sanity, and surely if such a hearing were intended it could not be the purpose to commit the defendant if found to be sane. Besides, there is an express prohibition upon liberation from the asylum until a certain showing has been made to the court that he has recovered or that no person will be in danger by his discharge. The fact that the trial court denied an application for an inquiry into the petitioner’s sanity does not avoid the commitment or render his restraint illegal for want of power. As pointed out in the opinion quoted from (86 Kan. 539, 548) an application for liberation can be made by him, or on his behalf, in a simple, ordinary way; but the one here made was not for liberation from the asylum, but rather to prevent his being placed therein — a thing which the statute does not mention, and certainly one whose refusal does not work the right to a discharge. The writ is therefore denied.	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The opinion of the court was delivered by West, J.: In 1907 the city of Argentine was authorized to levy a tax of ten mills for- general revenue purposes and five- mills for purposes of general street improvements, which on the assessed valuation would amount to $10,998. Under the provisions of chapter 78 of the Laws of 1908 (see Gen. Stát. 1909, § 9394 et seq.) the city was not authorized for that year to levy more than two per cent in excess of the amount authorized for the previous year, which would be $11,207. However, for 1908 the city in fact levied for these purposes the sum of $12,776, $1569 in excess of the authorized levy for 1907 plus two per cent. The portion of this excess falling upon the plaintiff was $355.09. It was alleged that in addition to this a levy of one mill for the purpose of paying judgments was made in excess of lawful authority, which produced a charge against the plaintiff of $584.99. Having paid these charges under protest, the plaintiff brought this action against the city and county to recover back the total sum of $939.08, in which action it is sought to recover in fact only one-half of that sum, the whole amount having been paid December 20, bringing the case within the rule laid down in Railway Co. v. City of Humboldt, 87 Kan. 1, 123 Pac. 727. The court below sustained a demurrer to the plaintiff’s evidence and from this ruling the appeal is taken. The act of 1908, already referred to, permitted the authorized amount of the previous year plus two per cent to be exceeded, provided the state tax commission upon application and notice should prescribe a greater sum, or the electors should by direct vote authorize an increase. The petition did not allege anything with respect to such action by the state tax commission or by the electors. The defense insists that under the rule of presumption and regularity so often laid down in this state the plaintiff failed to prove a cause of action. Section 2 of the act of 1908 provides that such act shall in no way limit the amount of any levy necessary to be made for the purpose of paying any judgment, or any levy made by ordinance for special purposes. We are unable to find any statute expressly authorizing a levy by a city of the second class to pay judgments, but section 1380 of the General Statutes of 1909 provides that the city council may appropriate money and provide for the payment of the debts and expenses of the city. Section 1383 limits the total levy for general purposes, exclusive of school taxes, to four per cent of the taxable property of the preceding year. In Phelps v. Lodge, 60 Kan. 122, 55 Pac. 840, it appeared that the authority and limitations touching the city of the third class there involved were in effect identical with those which apply here. The full ten-mill levy had been made for general revenue, all of which was needed for that purpose, and it was sought to compel an additional levy to pay a judgment. The court, after quoting the provisions of the statute identical in effect with those governing this case, said: “Construing all these provisions together they amount to this, that for general-revenue purposes the tax levy is limited to one per cent. For all city purposes it is limited to four per cent. The four-per-cent limitation has no reference to state, county or any other than city taxes. The council is authorized by section 78 to .provide for the payment of the debts of the city. A judgment is of course a debt.” (p. 124.) It was held that it was not only permissible but a binding duty to provide for the payment of the judgment. (See, also, Stevens v. Miller, 3 Kan. App. 192, 43 Pac. 439.) That the four per cent limit does not include state, county and school taxes was also decided in Water-Works Co. v. City of Columbus, 48 Kan. 99, 28 Pac. 1097, and 48 Kan. 378, 29 Pac. 762. In Stewart v. Town Co., 50 Kan. 553, 32 Pac. 121, it was held that between the ten-mill limitation for current expenses and the forty-mill limitation for general purposes, exclusive of school taxes, there is no conflict. It was also said: “The city is authorized to levy and collect taxes for the payment of bonded indebtedness and the interest on the same, as well as to pay off and discharge any judgment obtained against the city; and the levies for these purposes, including that for general revenue, must not in the aggregate exceed 40 mills on the dollar.” (p. 558.) It was also held that a levy for water, electric light and supplies for the fire department come under the head of general revenue purposes governed by the ten-mill limitation. In Ward v. Piper, 69 Kan. 773, 77 Pac. 699, the officers of a township had made a levy to pay bonds, and another for general current expenses. The plaintiff asked that the proceeds of these levies remaining in the treasury be applied to the payment of his judgments. It was held that in the absence of a showing that the judgments were based on a debt for ordinary township expenses and that the levy had been more than sufficient to meet the ordinary expenses, the court must indulge the presumption that the officers had done their duty and deny the relief sought. But as to the levy for interest on bonds it was held that this could and should be applied on the judgments which were based on interest due on township bonds. In Railway Co. v. City of Humboldt, 87 Kan. 1, 123 Pac. 727, the question arose whether after levying up to the limit for general revenue purposes the city could make an additional levy to pay indebtedness incurred for the same purpose, although denominated “floating indebtedness.” The liability intended to be covered by the additional levy consisted of outstanding warrants, one for a judgment whose basis was not shown, two for attorney’s fees, and one for improvement of waterworks. The nature of the claims for which the others had been issued did not appear. It was said that probably all these could have been paid out of the general revenue fund and as the limit of levy for such fund had been reached the one attempted to be made in excess thereof was void. It was pointed out that none of the constituent levies can exceed its own limitation nor the aggregate go beyond the 40-mill limit; also that merging a debt in a judgment does not change -its character, and that in the Phelps-Lodge case it appeared to have been assumed that the judgment was not for the ordinary current expenses of the city “and hence the question of whether it was inside or outside of the ten-mill limitation was not considered.” (p. 5.) Here there is no claim that the four per cent limit was exceeded, and we are not advised as to the nature of the claims on which were based the judgments the levy was made to pay. If it were shown that they were items of current expense the levy would be void for excess of the ten-mill levy plus two per cent. But in the absence of any showing concerning their nature the presumption always indulged in behalf of city officers who have acted under the sanction of their official oaths applies, and as the city had power to make a levy to pay a judgment for something outside of current expenses we must assume that for the payment of such a judgment the levy was made, and hence in this respect and to this extent the judgment sustaining the demurrer to the evidence is affirmed. Section 1 of chapter 78 of the Laws of 1908, providing that the sum produced by the maximum levy for 1907 can be exceeded by only two per cent, contains a proviso that a still larger sum may be permitted by the state tax commission, followed by another proviso that the electors may by vote authorize such increase. The petition alleged that the excess levy for 1908 for general revenue purposes was “unauthorized, excessive and void,” but no evidence was offered touching any consent or authority received from the tax commission or by a popular vote, and the city contends that in the absence of such evidence we must presume that the city officers were acting legally and that the levy was valid, and calls attention to the rule announced in Kindley v. Rogers, 85 Kan. 645, 118 Pac. 1037, and cases therein cited. The plaintiff argues that as the matter of receiving such authority is contained in provisos to the section in question the settled rule of pleading requires that such authority be pleaded in defense and not that the lack thereof be alleged or shown by the railway company, and numerous authorities are cited to the effect that while an exception must be negatived a proviso need not. But courts have become too practical — at least this court has — to care for the possible distinction between a proviso and an exception or the subtle and rarefied notion that they require different treatment. Neither does the failure to prove a negative — that no consent or authority was had— appear fatal, there being no allegation in the,answer or assertion anywhere that such Consent or authority was received. Had it been, the records of the state tax commission or those of the city clerk would so show, and the matter could have been made clear by a telephone call had the parties seen fit to take that convenient but informal way to avail themselves and the court of the benefit of these public records. Assuming that no such consent or authority was had, the levy was excessive and the plaintiff would be entitled to recover. The point on which the matter hinges is so technical that neither party should be permitted to lose or gain thereby unless the facts justify it. In the interest of justice and in order to reach the right of the case the judgment in respect to the excess levy for general revenue purposes is reversed with directions to enter judgment for the plaintiff thereon, unless counsel for the defense shall state that such excess was authorized in one of the ways indicated, in which case a new trial as to this portion of the case is directed.	[ -26, -22, -76, -18, 74, -60, 58, -118, 73, -79, -76, 115, -19, 90, 20, 97, -65, 61, 112, 106, -26, -93, 6, 75, -118, -9, -5, -59, -3, -51, -28, -28, 78, 48, -54, -107, 103, -58, 69, -36, 14, 14, -88, -59, -45, 64, 52, 111, 51, 79, -15, -113, -1, 40, 28, -61, 44, 44, -37, -73, -128, -7, -86, -123, 125, 6, 1, 54, -100, -63, -56, 42, -104, 21, 66, -32, 115, -90, -58, -42, 77, -39, 12, 100, 102, 1, 109, -21, -8, -120, 14, -33, -115, -89, -106, 25, 43, -18, -74, -103, 100, 22, 7, -2, -16, -43, 29, 108, 7, -98, -12, -77, -81, 100, -116, 67, -49, -93, 18, 97, -49, 54, 94, 119, 58, -101, -121, -100 ]
The opinion of the court was delivered by Burch, J.: The action was one to enjoin the issuing of school-district bonds to build a schoolhouse and to enjoin changing the site of the schoolhouse. The plaintiffs were defeated and appeal. It is said the proposition to issue bonds did not carry at the bond election. The canvassing board rejected three ballots in the following form: If the first ballot be counted for and the other two be counted against the bonds the proposition did not carry. The defendants claim the Australian ballot law applies to the conduct of school-district bond elections, and they interpret the ballots according to that law. The statutes. involved contain provisions indicating that the Australian ballot law governs, and • that it does not govern. The general practice, of which the legislature certainly is cognizant, has been to ignore the law. It was ignored in the present instance. Without entering upon an extended discussion of the subject, it is sufficient to say that the court is of the opinion the Australian ballot law does not apply to school-district bond elections. If this were not so the ballots used in the bond election were not in the form prescribed by the Australian ballot law, and other material features of that law were disregarded in holding the election. The question then is, What was the intention of the voters casting the ballots which the canvassing board rejected? The first ballot was cast for the bonds. The wo'rd “No” written on the second ballot is a word of opposition used with reference to the proposition to vote bonds, and the ballot should be counted against the bonds. The third ballot was also cast against the bonds. The result is the proposition to vote bonds failed to catry. It is said that the plaintiffs had a remedy by way of contest of the election. If so, the remedy was not exclusive of that afforded the plaintiffs as taxpayers by section 265 of the civil code. The judgment of the district court with reference to issuing bonds is reversed, and the cause is remanded with direction to enter judgment for the plaintiffs. It is said the proposition to change the site of the schoolhouse did not carry at the election held to determine the matter. The solution of this question depends upon the application of well-understood principles of law to oral testimony, which was conflicting in some particulars and which the trial court was better able to estimate. Taking the testimony as it is found in the record, however, this court concludes that the proposition carried. The judgment of the district court with reference to changing the schoolhouse site is affirmed.	[ -45, -4, -43, -20, 10, 64, 123, -98, 105, -127, 37, -41, -83, -37, -107, 115, -109, 111, -48, 106, -43, -77, 35, 65, -9, -5, -61, -59, -67, 126, -2, 94, 76, 48, -118, -43, -58, 79, -51, -48, -82, -121, -117, 75, -55, -62, 60, 107, 122, -117, 101, -102, -29, 44, 28, -61, -56, 40, 89, -67, 64, -7, 60, -121, 121, 7, -111, 53, -68, -127, -8, 38, -43, 49, -116, -24, -1, -90, -122, -42, 13, -103, -120, -26, 98, 17, 36, -17, -72, 72, 46, 95, 37, -90, -105, 25, 35, 5, -123, -99, 117, 22, -121, 126, -29, -107, 30, 125, 6, -53, -14, -125, 13, 60, 16, 3, -57, 49, 48, 101, -51, -68, 92, 103, 50, -37, -50, -34 ]
The opinion of the court was delivered by Marshall, J.: In these actions the state seeks to compel the county clerk of Ellsworth county to place on the tax rolls for the purpose of taxation the properties of defendant salt companies at the amounts assessed by the state tax commission. Defendant salt companies’ answer is that these matters have been adjudicated in actions in the district court of Ells-worth county, wherein the salt companies were plaintiffs, and the county treasurer and county commissioners of that county were defendants, in which actions the county treasurer and board of county commissioners were enjoined from collecting the taxes levied upon the assessment made by the state tax commission. In 1914 the county assessor assessed the property of each of the defendants at certain figures. In May the county commissioners, as a county board of equalization, lowered these assessments. The county assessor then appealed to the state tax commission and that body raised the assessments. In January, 1915, the salt companies commenced their actions to enjoin the collection of the tax. June 17, 1915, judgments were rendered enjoining the county treasurer and the county commissioners from collecting taxes on these assessments and ordering the salt companies to pay taxes on the assessments as made by the county board of equalization. The question for determination is, Does a judgment rendered by a district court enjoining the collection of a tax bind the state tax commission? Section 265 of the code of civil procedure in part reads: “An injunction may be granted to enjoin the illegal levy of any tax, charge or assessment, or the collection of any illegal tax, charge, or assessment.” By this statute the state provides that its acts and the acts of all its departments in levying or in collecing any tax may be questioned, and a judgment may be rendered enjoining the levy or collection of that tax. The statute contemplates that the judgment shall be final and conclusive. The state tax commission fixed .the valuation of the properties of defendant salt companies. The proper taxing officers levied taxes on all prop erty in their respective jurisdictions. The defendants then enjoined the county treasurer of Ellsworth county from collecting taxes on the assessments that were fixed by the state tax commission; and were by that judgment directed to pay •taxes on their properties under the assessments as fixed by the county board of equalization. If the statute is to be given effect, one judgment that determines the validity of the tax is sufficient and that judgment binds all departments of the state government. It is contended that the judgment is not binding on the state tax commission. That commission fixed the valuation of the properties and certified that valuation to the proper officers. They entered- the valuation on the tax rolls. Taxes were levied according to law. The state tax commission then had nothing further to do with the matter. The writ of mandamus is denied.	[ -16, -2, -12, -116, 106, -64, 10, -127, 73, -95, -89, 83, 97, -38, 20, 115, -9, 63, 116, 106, -61, -73, 19, 99, -44, -13, -39, -35, -77, 77, -28, -44, 12, -80, -6, -43, 38, 99, -27, -34, -58, 13, 40, 77, -7, 32, 52, 105, 114, 67, -47, 14, -77, 44, 28, -61, 105, 44, -55, 57, -48, -79, -66, -123, 109, 3, 17, 66, -104, -57, -56, -82, -104, 49, -62, -24, 123, -74, 82, 84, 13, -5, 13, 46, 66, 17, 5, -17, -20, -104, 14, 123, -115, -89, -106, 120, 114, -118, -74, -99, 116, 82, -121, -10, -18, -123, -33, 108, -125, -50, -106, -77, -121, -16, -111, 7, -33, -93, 16, 113, -49, -70, 92, 70, 82, 11, -58, -108 ]
The opinion of the court was delivered by Johnston, C. J.: This was an action of replevin to recover a team of mules alleged to be the property of T. A. Campbell and Henry Davis and of which Ralph Mowrer had gained .possession. The trial resulted in a verdict for the defendant, but the court granted a new trial on the specific ground that error had been committed in refusing to instruct the jury that if a trade or exchange of mules had been agreed upon and effected, but had been brought about by the misrepresentations and fraud of the defendant, the plaintiffs would be entitled to rescind the contract and regain the possession of the mules if they immediately returned the mules received from the defendant and demanded the return of their own. There was testimony of a conversation between an employee or agent of the plaintiffs and the defendant with reference to trading plaintiffs’ team of mules for a span of mules which the defendant owned. The testimony is in conflict as to whether a trade was actually agreed upon or was conditional upon the subsequent examination and approval of another” agent of the plaintiffs. At any rate, defendant obtained the possession of plaintiffs’ mules, either as a result of a trade or for the purpose of testing them, and left those which he had owned at the plaintiffs’ barn. The next day the plaintiffs returned to the defendant the mules he had left with them,.and they testified that they found one of them to be wind-broken, weak in the back and practically worthless. It was in testimony that in the negotiations between the parties the defendant assured the plaintiffs’ agent that his mules were sound and all right and that there was “not a blemish or pimple on them.” He further said it was not worth while looking at them and hence the agent said he made no examination of the mules. There was also testimony that as the agent approached the head of one mule the defendant advised him not to get too close as he was “foolish about the mouth,” and when he started to walk behind the mule the defendant said, “You better watch out, he might kick you.” In instructing the jury the court submitted the question whether or not a trade had actually been made, but declined to submit the question whether the exchange of mules was obtained through the misrepresentation and fraud of the defendant. By this refusal the court practically excluded from the jury all the testimony which had been received upon that theory of the case. There being testimony of latent defects in o.ne of the defendant’s mules appearing to have been intentionally concealed by the defendant, and of misrepresentations and fraud by him to induce a trade, of a kind which would justify the plaintiffs in treating the contract of exchange as void, it became the duty of the court to submit that question to the jury. The plaintiffs were entitled to present both theories: (1) that they were the owners and entitled to the possession of the property because the negotiations did not result in a completed contract and change of ownership; and (2) that if a contract was made it was rendered nugatory by the fraud of the defendant for which the plaintiffs promptly repudiated it. The petition of the plaintiffs set forth that they were the owners and entitled to the immediate possession of the mules and that the defendant wrongfully detained them, and this was met by an answer containing a general denial. Upon the issues thus closed the plaintiffs were justified in offering testimony as to their right to possession under either or both theories, and the defendant was warranted in making any defense and proving any fact which tended to show that the plaintiffs did not own the mules, or were not entitled to the possession of them. (Wilson v. Fuller, 9 Kan. 176; White v. Gemeny, 47 Kan. 741, 28 Pac. 1011, 27 Am. St. Rep. 320; Street v. Morgan, 64 Kan. 85, 67 Pac. 448; Colean v. Johnson, 82 Kan. 655, 109 Pac. 403; Ely v. Holloway, 95 Kan. 8, 147 Pac. 1128; Benesch v. Waggner, 12 Colo. 534, 21 Pac. 706, 13 Am. St. Rep. 254; Phenix Iron Works Co. v. McEvony, 47 Neb. 228, 66 N. W. 290, 53 Am. St. Rep. 527.) The failure to present both phases of the case to the jury was error and the court ruled correctly in granting a new trial. The judgment is affirmed.	[ 112, -4, -27, -115, 10, 64, 42, -102, 17, 33, 54, 83, -55, -42, 0, 113, -18, 109, 84, 107, 78, -78, 79, -13, -61, -45, -45, -49, -79, 42, -92, 87, 72, 52, -54, -43, -26, 98, -63, 92, -54, 9, -104, 108, -39, 120, 56, 43, 52, 74, 113, -114, -29, 46, 29, -45, 105, 40, 107, 59, -35, -7, -78, -115, 45, 6, 18, 98, -98, 33, 88, 110, -112, 49, -111, -8, -13, -76, -126, -44, 105, -69, 8, 102, 102, 1, 117, -17, 56, -120, 47, -66, -113, -89, -112, 88, 34, 65, -74, -35, -78, 82, -91, 116, -2, 29, -36, 48, 7, -113, -106, -93, -81, 58, -104, 11, -37, -121, 22, 113, -51, -22, 93, 21, 48, -101, -113, 26 ]
The opinion of the court was delivered by Porter, J.: In some respects this is a remarkable case. The plaintiff sued to recover $500 damages for the alleged breach by the defendant of a written contract for an exchange of real estate, claiming that he had paid that amount as commissions to one Joe Dome, his agent in procuring the contract. The defendant answered with a cross-petition admitting the validity of the contract, but claiming that plaintiff had breached it; that defendant was and continued ready, able and willing to comply with his part of it and to exchange properties. He asked a decree against plaintiff for specific performance, with a prayer in the alternative for damages in case plaintiff had placed it beyond his power to perform. The plaintiff then was willing to drop the matter and filed his motion to dismiss the action, alleging that he had never authorized it to be brought. The court tried out that issue first and found against the plaintiff, who then filed a reply, and the cause went to trial before the court. Separate findings of the facts and conclusions of law were made at the request of plaintiff, and among these is the finding that Dome had no authority to sign the contract as agent for plaintiff ;• that the contract never bound the plaintiff to do anything until he ratified it by bringing his action upon it to recover damages for its breach. The court also found that it was the plaintiff and not the defendant who breached the contract, and that defendant was entitled to recover damages' against plaintiff in the sum of $4520, and j udgment was rendered accordingly. This left the plaintiff in a serious predicament and it is not surprising that he appealed. At the time the judgment was rendered the court added a postscript statement which became a part of the record, and which reads: “The trial court feels that the judgment in this case is inequitable; that defendant could not have recovered in this case if plaintiff had not elected to hold said contract good and sue thereon; that the question of equity was not considered by the court in rendering judgment in this case but the judgment is based solely upon the court’s idea that plaintiff in filing the suit in this case has ratified said contract and is bound by the terms thereof. This statement is made in order that the Supreme Court may know the theory upon which judgment was rendered in this ease.” By the contract, which is dated November 18, 1912, plaintiff agreed to trade three sections of land in Nebraska for an apartment house in Kansas City, Kan., belonging to defendant. The Nebraska land was represented as subject to mortgages amounting to $7000, due May 17/1916. As a matter of fact, $1000 of the incumbrance was past due and the balance matured a year later. The court found that the apartment house was represented to be subject to two mortgages aggregating $5000, due in five years. The contract is silent as to the date when these mortgages were due, and the court’s finding is upon evidence of oral statements made to plaintiff by defendant’s agent previous to the execution of the contract. The amount of mortgages on the Kansas City property turned out to be $5200, but before plaintiff declared his intention to refuse to make the trade, the defendant took up the $200 incumbrance and the release was noted on his abstract which was returned to plaintiff for further examination. It appears also that a suit to foreclose one of the mortgages on the apartment house was pending in the district court of Wyandotte county, but defendant notified the plaintiff that arrangements had been made to dismiss the foreclosure and to extend the mortgage, and that he was waiting to learn whether the plaintiff would arrange to procure an extension of the mortgages on the Nebraska land. The correspondence between the parties and their attorneys concerning requirements in respect to the abstracts continued for several weeks after the expiration of the thirty days agreed upon for the completion of the trade. The court found that the plaintiff failed to return defendant’s abstract after it was sent to him the last time, or to answer inquiries respecting the defendant’s requirements as to plaintiff’s abstract; and that on April 14, 1913, plaintiff notified defendant that he refused to complete the trade, assigning as his reasons therefor that he had never made a valid contract, that defendant had failed to comply with his part of it, and that there were fraudulent representations made to him by defendant concerning the property and the incumbrances thereon. The particular matters which doubtless impelled the trial court to conclude that the j udgment is inequitable, are the facts stated in finding No. 13, namely, that at the time the contract was made plaintiff’s Nebraska land was worth $11,520, subject to $7000 incumbrances, while the apartment house was worth' only $5000 and was incumbered for that amount, making the difference between the values of the properties $4520, the amount for which the court gave defendant judgment. The plaintiff relies upon two assignments of error, first, that the court erred in its conclusions of law from the facts found; second, that it erred in rendering judgment in defendant’s favor. The main contention is, that the judgment is inequitable, and naturally much importance is attached to the statement of the trial judge that equitable considerations did not enter into its rendition. There is a statement in plaintiff’s brief that this action was brought to recover as damages the commisson which he paid to his agent “because of defendant’s fraud in procuring the contract, and his failure to perform it.” That portion of the statement which we have italicized is not supported by the abstract. The petition to which plaintiff refers contains no averment of fraud in procuring the contract— the cause of action being placed solely upon the alleged failure of defendant to perform. While the eouxff permitted plaintiff to prove a misrepresentation with respect to the amount of incumbrances on the Kansas City property made by defeixdant’s agent before the contract was executed, it must be apparent that the validity of the contract was not in issue. Nor could its validity or binding effect as to himself have been raised as an issue by the plaintiff. In order to recover damages for its breach it became necessary for him to affirm the contract, and, as the trial court found, he did this when he brought his action on the contract. It hardly seems necessary to cite authorities to show that when plaintiff elected to sue upon the contract for damages resulting from the alleged breach of its terms he thereby ratified it as a valid contract binding alike upon himself and the defendant. But see' McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834, where the court used this language: “He can not be permitted to blow hot and. cold — to seek the specific performance of a contract and in the same action claim that the contract itself is void.” (p. 429.) “After the right to rescind a contract has accrued, the party having the right may waive it by instituting an action to recover damages for the breach of the other party, since such an action is based upon an affirmance of the contract.” (24 A. & E. Encycl. of L. 647.) The plaintiff assumes that because of the settled doctrine that specific performance is not a matter of right, but always an equitable remedy the granting of which rests in the discretion of a court of equity, therefore a judgment for damages can not be awarded where specific performance is found impossible, unless the court, in its discretion and upon a consideration of the equities of the whole case, concludes that it is just and fair to grant such relief. He doubtless relies .upon a principle which is stated in the following language: “ít is well settled . . . that a court of equity will not grant pecuniary compensation in lieu of performance, unless the case made out is one for equitable interposition and would entitle the plaintiff to performance in specie but for the intervening facts.” (26 A. & E. Encycl. of L. 86.) The doctrine, however, obviously has no application to an action for damages in a court of law. It is like many other rules governing the procedure in suits for specific performance which still obtain in equity courts, such for instance as the rule that where the plaintiff knows at the time he files the suit for specific performance that the contract can not be specifically performed or decreed he will not be allowed to recover compensation in the way of damages, for the reason that a court of equity would have no jurisdiction. As noted in 20 Encyc. of PI. & Pr. 487, “these rules are abrogated by the code.” Suppose the situation were reversed and all the advantages of the trade had been on plaintiff’s side. He sues to recover damages for defendant’s breach of the contract. Would it have been a sufficient defense to the cause of action for defendant to have pleaded that he had made a bad bargain, that the Nebraska land was not worth as much as the apartment house? Clearly not. “Although inadequacy of consideration in contracts for sale, either in the price or property sold, may be a ground of defence, yet the facility of contracting and the free exercise of the judgment and will of the parties require that, as a general rule, they should be sole judges as to the value of the benefits to be derived from their bargains. . . . And such is now the rule. ‘For courts of equity, as well as courts of law, act upon the ground that every person who is not from his peculiar condition and circumstances under disability, is entitled to dispose of his property in such manner and upon such terms as he chooses; and whether his bargains are wise and discreet, dr profitable or unprofitable, or otherwise, are considerations not for courts of justice, but for the party himself to deliberate upon.’ (Story’s Eq. Juris., §244.)” (Waterman on The Specific Performance of Contracts, § 179.) In Gulf Rld. Co. v. Comm’rs of Miami County, 12 Kan. 482, it was said: “Mere inadequacy of price affords no ground to set aside a contract of sale, unless it be of so gross a nature and given under such circumstances as to afford a necessary presumption of fraud or imposition.” (Syl. ¶ 6.) Trial courts frequently find it necessary to give judgments for damages for the breach of contracts which are harsh and inequitable, and this court is not permitted to reverse such judgments upon purely equitable considerations. The plaintiff can not claim that he has been impaled upon the technicalities of the law. It is not a technical rule that one who is a party to a contract and who sues to recover damages for its breach thereby affirms that the contract is valid and binding upon himself as well as the defendant. It is a substantive rule founded in the very nature, essence and reason of things — a rule which does not admit of exceptions for the purpose of allowing the plaintiff in such an action to change his foothold and, when met with a cross-demand of the other party based upon the theory that the contract is valid, then to assert that he is not bound by its terms. In plaintiff’s brief it is asserted that there is no allegation in the cross-petition, or evidence, or finding, to the effect that “plaintiff had disposed of his Nebraska land or in some other way put it beyond his power to comply with the contract.” An allegation of that kind was neither necessary nor proper in view of the theory upon which the cross-petition was based, which was that defendant desired specific performance but if for any reason that relief could not be decreed he wanted his damages. Under the rules which prevailed before the adoption of codes, as already noted, an allegation showing that the complainant was aware of the fact that specific performance could not be decreed would have made the pleading subject to demurrer. The cross-petition follows a form approved in Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576. The defendant challenges the statement that there was no evidence showing that plaintiff, had disposed of his Nebraska lands, and the challenge is supported by filing here certified copies of deeds executed by plaintiff conveying the lands to a third party, which it appears were introduced in evidence though not mentioned in the abstract. This disposes of the contention that there was no evidence of the fact; and the judgment in defendant’s favor includes a finding that plaintiff had placed it beyond his power to perform the contract. The judgment must be affirmed.	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The opinion of the court was delivered by Porter, J.: This is a suit for partition. The parties are' children and heirs at law of John M. Hoffhine, who died intestate December 29,'1888, owning a farm of 160'acres, which he occupied with his family as a home. The plaintiffs appeal from a decree adjudging that defendant John P. Hoffhine, one of the sons of the deceased, owns the entire premises. The facts have been found separately by the trial court, and while plaintiffs have argued a number of questions, the only one which we think is necessary to consider is whether there was evidence to support the finding that the deeds under which John P. Hoffhine claims title were delivered. The grantor had been married three times and there were three sets of children. On December 3, 1888, he and Mrs. Hoffhine, step-mother to the children of the former marriages, agreed upon a separation. She was given the custody of her infant child and relinquished all her interest in the farm in consideration .of the payment of $1000. They went before a notary, where they executed and acknowledged a warranty deed conveying the farm to John P. Hoffhine, at that time a minor of about nineteen years of age. Mrs. Hoffhine at the same time executed a quitclaim deed. Mr. Hoffhine paid her $700 in money and gave her his note for $300, which was on the same' day signed also by the son. After his father’s death, which occurred a few weeks later, John paid his step-mother the note. The evidence to establish a delivery of the warranty deed was substantially as follows: When the notary had taken the acknowledgments he said the deed was ready to be recorded. The grantor said: “Well, you just keep it until I call for it; I am not going to record it.” The notary then placed both deeds in his safe, where they remained until after Mr. Hoffhine’s death, which occurred less than four weeks later. During his last sickness Mr. Hoffhine stated to different per sons that he intended to convey the land to John, and that he thought John would be able to pay off the indebtedness and keep the family together. There was evidence, too, that a few days before his death he said to his brother: “You and John go and get those deeds and have them recorded.” Immediately after his death, John and his uncle, to whom this statement was made, got the deeds from the notary and had them recorded. While not tending in any respect to establish a delivery of the deeds, it should be said here that after the death of the father the family remained on the farm, the younger children were kept in school, and all assisted in the usual farm work. John was the eldest and took charge of affairs. From the receipts of the place he paid the taxes and an old mortgage that existed on the farm, and kept the family together until the children came of age. The general rules which control in determining what is necessary to constitute the delivery of a deed have so frequently been considered in recent cases that we shall not undertake to restate them nor to review the wilderness of cases involving the application of those rules to particular facts. As was said in Alward v. Lobingier, 87 Kan. 106, 128 Pac. 867, the general rules which govern in cases of this kind “do not admit of universal application,” and “each case depends to some extent upon its own peculiar circumstances.” (p. 108.) Where manual delivery is relied upon, the conclusive test is whether the grantor relinquished “the right to the immediate control of the deed.” ' (p. 108.) If no further evidence of delivery had been offered except to show what occurred in the presence of the notary, the authorities cited by plaintiffs would tend strongly to support their contention. The direction to the notary not to record the deed but to hold it until the grantor called for it indicates that he had no intention at that time to relinquish the right to the immediate control of the instrument, but, on the contrary, that he intended to and did retain the right of control; that if at any time thereafter he had changed his mind, he could have called for the deed and destroyed it. But there was further testimony showing that a few days before his death he directed his brother to go and get the deed and record it. That this direction was not carried out until after his death does not affect the situation. There was at least evidence to support the trial court’s finding to the effect that he had divested himself of all control over the instrument and intended from that moment it should pass out of his control, and if this is true there was a legal delivery. Besides, the grantee was his son and a minor; and all the circumstances of the case — the father’s statements during his illness, showing an intention to complete the conveyance so that the son should have the farm and keep the children together — were matters to which the trial court evidently gave due consideration. Since the title to the real estate passed immediately by the conveyances to John, the other questions urged by the plaintiffs go out of the case. His ownership is not affected by the character and extent of his possession, the knowledge or notice other members of the family had that he claimed title, or his absence from the state. The father saw fit to give the place to him upon considerations which were deemed sufficient and which are not open to inquiry. There was evidence offered by the plaintiffs tending to show that when John’s father made the statement directing the recording of the deed he was to more or less extent under the influence of opiates; but the court has found the facts upon evidence sufficient to support them, and the judgment must be affirmed.	[ 112, 108, -104, 61, 10, 96, -86, -104, 97, -89, 35, 87, -17, -62, 0, 45, 118, 13, 81, 107, 86, -77, 22, -127, -45, -14, -79, -35, -79, -23, -28, -42, 76, 32, -118, 93, -26, -22, -57, 16, -50, -124, -117, 97, -39, -48, 48, -5, 86, 75, 117, -114, -13, 46, 57, 71, 72, 46, 105, 61, -48, 112, -81, -123, 127, 7, -111, 38, -104, -53, -54, 10, -112, 49, -128, -8, 83, -76, -106, 116, 11, 25, 9, 38, -25, 49, -43, -19, -8, -104, 47, 126, 13, 38, -109, 72, 11, 44, -76, -99, 117, 80, -81, 118, -17, 21, 28, 104, 0, -113, -74, -125, -117, 60, -104, 2, -21, -89, 49, 113, -51, -94, 93, 103, 49, -101, -114, -46 ]
The opinion of the court was delivered by Mason, J.: A petition for a rehearing, containing a forcible presentation of the argument for the appellee, has been fully considered, but the court adheres to the view already expressed. A contention is pressed that a correct interpretation has not been placed upon the language of the petition in the action for specific performance, with regard to the kind of title the plaintiff was willing to accept. The sentence in question reads: “The plaintiff further alleges that on the said 1st day of March, A. D. 1906, he was ready, able and willing and has ever since been and still is able, ready and willing to perform all of the terms and conditions of said contract of sale upon his part and pay the full purchase price of said lands and accept a warranty deed conveying the title to the said lands and tenements of which the said defendant was seized on the 1st day of March, 1906, or such title as the defendant has in said above described premises at the time of the commencement of this action.” The contention is made that this means that the plaintiff was willing either (1) to accept a warranty deed conveying the title the defendant had on March 1, 1906; or (2) to accept [without qualification as to the character of deed to be given] 'such title as the defendant had when the action was begun. Such a reading may be consistent with the rules of grammar, but we do not think the language quoted, considered as a whole, is fairly to be given that construction. To us the obvious meaning seems to be that the plaintiff was willing to accept a warranty deed to such title as the defendant had, either on March 1, 1906, or when the action was begun. It indicated that in case the defendant should prove unable to make a perfect title the plaintiff 'elected to accept such, as he had, notwithstanding any defects, rather than avail himself of his alternative right to treat the contract as broken, and ask damages for its breach, allowing the defendant to retain the land. It did not imply that the plaintiff voluntarily relieved the defendant from any of his legal obligations under his agreement. Upon grounds set out in the original opinion we regard the .case as not falling within the rule against splitting a cause of action, applied in Naugle v. Naugle, 89 Kan. 622, 132 Pac. 164. The present action is in effect upon a breach of warranty. If the defendant had paid his personal debt to Paris, or if for any reason it had not been enforced against the land, the plaintiff would have had no claim against him. The petition for a rehearing is denied.	[ -78, 124, -36, 46, -118, 96, 40, -40, 121, -127, 39, 83, -19, -58, 4, 41, -13, 105, 117, 120, 84, -77, 23, 19, -46, -77, 83, 85, -79, -50, -12, 94, 76, 32, -62, -43, -26, -62, -51, 24, -118, -123, -72, 68, -39, 80, 48, 27, 80, 75, 65, -33, -77, 44, 25, -57, 40, 40, 27, 60, -16, -72, -65, 13, 127, 3, -93, 38, -34, -25, 104, 76, -112, 56, 1, -56, 115, 54, -122, 116, 45, 25, 40, 38, 102, 49, 77, -18, -40, -72, 46, 62, -115, -90, 49, 88, -117, 105, -74, -103, 109, 16, 39, -10, -17, -107, 28, -20, 15, -85, -106, -95, -113, 126, -102, 3, -26, -125, -96, 112, -52, -32, 92, 99, 121, -101, -113, -40 ]
The opinion of the court was delivered by Marshall, J.: The defendant appeals from a judgment of conviction of rape by having carnal knowledge of Alma Stevenson, a female under the age of eighteen years. No defense other than not- guilty was set up by the defendant. During the argument of counsel for the defendant he requested and the court refused to give this instruction: “You are instructed that some evidence has been introduced in this case tending to show that the defendant and prosecuting witness are married, and are husband and wife, and the state has also introduced evidence to show that the defendant and prosecuting witness lived and cohabited together as man and wife. In this regard I instruct you that a man can not commit rape upon his own wife. The mere cohabitation of two persons of different sexes, and their behavior in other respects as husband and wife, always furnishes an inference of greater or less strength that a marriage has been solemnized between them. The conduct being susceptible of two opposite explanations, you are bound to assume it to be moral rather than immoral. The burden of proof is upon'the state to establish to you, beyond a reasonable doubt, that the sexual relations existing between the defendant and prosecuting witness, if you find they did exist, were unlawful and illicit, and that the defendant was not the husband of said prosecuting witness, and if the state fails to prove this to you beyond a reasonable doubt you must acquit the defendant.” The defendant did not, during the introduction of evidence, contend that he and Alma Stevenson were husband and wife. The evidence fairly tended to show that they were not. To us it does not appear that there was any evidence that tended to show that they were. The defendant’s argument is that the burden was on the state to prove that Alma Stevenson was not his wife, and that for that reason it was the duty of the court to instruct the jury concerning this matter. We disagree with the defendant in his statement that there was evidence tending to show that Alma'Stevenson was the wife of the defendant. We are unable to find such evidence in the abstracts before us. There is not even a contention that they were husband and wife. This being true, it was not incumbent on the court to instruct concerning the lack of marriage relation between the defendant and Alma Stevenson. Marriage of the defendant and Alma Stevenson was a matter of defense which must have appeared in thé evidence in some way before the state was compelled to prove that the relation did not exist. In an information charging rape it is not necessary to state that the person ravished was not the wife of the defendant. (The State v. White, 44 Kan. 514, 25 Pac. 33; 33 Cyc. 1440 ; Note, 16 Ann. Cas. 902.) It follows that the prosecution to make out a prima facie case is not required to prove that the accused and the woman were not husband and wife. (The State v. Hooks, 69 Wis. 182, 33 N. W. 57, 2 Am. St. Rep. 728, 730; Note, Ann. Cas. 1912 B, 114.) There are many matters of defense in criminal prosecutions that the state need not anticipate, and until they appear in evidence in some way it is not incumbent on the state to disprove them. Insanity and self-defense are good illustrations of this rule. The judgment is affirmed.	[ 48, -24, -3, -65, 58, 96, -86, -40, 48, -125, -77, -13, -83, -53, 4, 121, -70, 47, 84, 107, -34, -74, -42, -63, -14, -45, -5, -43, -75, -34, -10, -58, 76, 34, 66, -47, 98, 74, -63, 84, -114, -115, -87, -31, -48, -48, 52, 91, 98, 14, 53, -98, -13, 43, 28, -45, 41, 44, 75, 124, 112, 17, -114, -113, 77, 54, -77, 50, -98, -91, -40, 62, -104, 49, 0, -4, 122, -108, -126, 116, 93, -69, 13, 98, 98, 5, -43, -1, 40, -119, 14, 118, -67, -89, 16, 0, 9, 101, -82, -99, 100, 84, -93, 114, -12, 29, 61, 108, 11, -117, -106, -79, -51, 120, -112, 33, -21, 33, 81, 112, -51, -22, 76, 85, 122, -101, -98, -77 ]
The opinion of the court was delivered by West, J.: The defendant was convicted of murder in the first degree, and appeals upon the grounds urged in his brief, that the information did not charge nor the evidence prove such offense, that the court erred in the instructions, in the ad mission and rejection of testimony and in denying a continuance. These will be considered in their order. The charging part of the information, of which the defendant complains, is that— “One E. B. Wimer did then and there unlawfully, willfully, feloniously, purposely, and of deliberate and premeditated malice, kill one Y. M. Harold, by shooting the said V. M. Harold with a gun, commonly called a revolver, held in the hands of the said E. B. Wimer which said revolver was then and' there loaded with powder and leaden bullets. And the said E. B. Wimer did, then and there as aforesaid, discharge the said revolver into the body of the said V. M. Harold, who was then and there a human being, and the said E. B. Wimer did as aforesaid then and there cause the death of the said V. M. Harold.” It is contended that this is not a charge of a willful, deliberate and premeditated killing within the meaning of the statute defining murder in the first degree. Smith v. The State of Kansas, 1 Kan. 365; The State v. Brown, 21 Kan. 38; The State v. Stackhouse, 24 Kan. 445, and The State v. Johnson, 92 Kan. 441, 140 Pac. 839, are cited. In the Smith case it was said: “To be murder in the first degree, the killing must have been willful, deliberate and premeditated, and such deliberate and premeditated will or intent to kill, being an essential ingredient in the crime, must be alleged in the indictment, ■ else the prisoner is convicted of a crime for which he has not been indicted.” (p. 388.) In the Brown case the indictment did not charge that the killing was done deliberately or premeditatedly. The court said that stripped of everything except that which might be supposed to charge deliberation and premeditation it charged that the shooting was done with deliberate and premeditated malice, but not that the defendant at the time had a deliberate and premeditated intention or any intention of killing; that from anything appearing in that part of the indictment the shooting might have been committed with the intention merely of wounding the deceased. In the information before us, however, the killing itself is alleged to have been done feloniously, purposely and with deliberate and premeditated malice. With all the thoroughly approved forms easily found, it is 'difficult to see why an information presenting any perplexing questions as to. sufficiency need be used. But, however inartistic, if the required substance be found in the charge it must be up held, for the defendant could suffer no material or prejudicial injury because of mere informality. In the Stackhouse case it was said that the assault, the killing, the intent to kill and the deliberate and premeditated intent constitute all the elements of the crime, (p. 450.) In the Johnson case definitions of deliberation and premeditation are given, and it is said that the former has reference to having thought over the matter beforehand, and that the latter pertains more to the matter of committing the act or the fact that its commission was determined upon in cold blood. The vital question is the meaning which must be attached to the expression “deliberate and premeditated malice.” Malice aforethought has been held'to be nothing more than an unlawful or wicked intention. (The State v. White, 14 Kan. 538; The State v. Fooks, 29 Kan. 425.) Malice has been said to signify ill will, hatred or revenge toward a particular individual; as denoting that condition of one’s mind which is manifested by his intentional doing of a wrongful act without just cause or excuse; any wicked or mischievous intention, of the mind. (The State v. Witt, 34 Kan. 488, 8 Pac. 769.) Malice aforethought, a wicked intention to kill, previously and deliberately formed. (The State v. McGaffin, 36 Kan. 315, 13 Pac. 560.) Hence, when one harbors such a state of mind and spirit of malevolence as indicated by the foregoing definitions, and with such deliberate and premeditated state of mind kills another, it is impossible to escape the conclusion that such killing is done deliberately and premeditatedly. It must be held, therefore, that in substance and effect the information sufficiently charged murder in the first degree. In order to dispose of the contention that the evidence was insufficient to support the verdict it will be necessary to give a brief story of the events leading up to the tragedy and a succinct statement of the material facts concerning the homicide itself as shown by the evidence. In 1910 the defendant, a widower with five children, married the mother of the deceased, Hannah Wimer, a widow with eight children. After the marriage all of the children of the wife and two of the' children of the husband lived with the wedded couple on the farm of the husband. The relations between the husband and wife became unpleasant, and a separation took place in Feb ruary, 1913, when the wife moved away and never afterwards lived with the defendant. About the time of the separation Virgil Harold, a son of Hannah Wimer, then about twenty-four years old, and the defendant, E. B. Wimer, had a fight, resulting in the latter being badly beaten up, the fight occurring apparently over what the son claimed his stepfather had said about his mother. After this it appears beyond dispute that Virgil Harold at different times was extremely abusive, insulting and threatening to the defendant, and made repeated statements to the effect that he intended to kill him or again do him bodily harm. It is equally clear that the defendant, more than twice the age of the deceased, regarded himself in danger, and for more than a year carried a pistol in order to protect himself if necessary, and that on various occasions when insulted and browbeaten by young Harold refrained from entering into any controversy or altercation with him. Some time after the separation the defendant rented his farm to a Mr. Chamberlain, and with his young son lived in a portion of the house. There was testimony tending to show that on account of the threats of his stepson the defendant tried to sell his farm and made certain journeys to other parts of the country. At Easter, 1914, Virgil Harold was at the place where the Chamberlains and the defendant lived, being a chum of one of the Chamberlain boys, and although he and the defendant met no trouble appears to have arisen, and no fault appears to have been found by Mr. Wimer by reason of Harold’s presence. In June thereafter the defendant began helping in the construction of a house for a neighbor a mile east of him, and on July 2 thereafter Virgil Harold drove up to the place where Wimer was working, and after remaining there a while went to the Wimer place, unhitched his horse and had supper with the Chamberlains, intending to go that evening to an ice-cream supper. Sometime before this the pistol carried by the defendant- got out of repair and he procured another, but did not have it upon his person on the day last referred to. He came home that evening, according to the testimony of some of the witnesses, somewhat earlier than usual. Virgil Harold’s horse was in the barn, and after supper he went out to hitch up to his single buggy. Robert Chamberlain testified, among other things, that he ran out of the north door of the dining room into the yard, through the gate in the direction of the barn, and saw Wimer standing in front of Harold with a gun in his hand about six feet from the deceased: “I saw Wimer have a revolver in his right hand; Virgil’s hands were hanging down to his sides, the way I looked at him; I heard no shots up to that time; Wimer spoke first; as near as I can give it, I heard him say, ‘You -’; I didn’t hear Virgil say anything; when Wimer swore that oath he commenced shooting right away; fired three shots, two in quick succession with a short pause before the third; I saw .Virge turn and commence to run as quick as he could; Virgil didn’t speak another word after Wimer said, ‘You -’; he cried out but didn’t speak a word; he cried out after the first two shots were fired; he turned to the left and kinda ducked under his horse’s nose, away from Wimer; when the first two shots were fired there was just a short pause; Virge was turning, and just as he ducked under his horse’s nose the third shot got him in the back; after Wimer fired he started walking up in the direction Virge turned, not but a step or two, probably three or four steps, and met right up with my brother; and I was right close, probably two or three steps away; I mean my brother James; he was coming from toward the barn.” He further testified that when he asked Wimer to give him the gun the latter stepped back so as to face both of the brothers and ordered them to keep back and stay off, and said that “That - can’t come here.” James Chamberlain testified that as Harold was putting the bridle on his horse Wimer walked down that way and said, “ ‘You-, what are you doing here?’ Virge said, ‘How’s that?’ Wimer said, ‘You -, what are you doing here? You get off this place.’ Virge said, ‘I’ll come back here whenever these boys invite me to come back to see them.’ Wimer said, ‘You do, and-you, I will shoot you,’ and he had on a pair of overalls that come up in front; he had his right hand in there, and when he said that he pulled his hand out and had this gun in it, and he leveled it at Virge, and when he done that I holloed at him. I said, ‘Hold on there, Mr. Wimer, we’re running this place now.’ He kinda turned and started back up toward the house and Virge turned to me and said, ‘Jim, did you see that gun?’ I said, ‘Yes, I seen it.’ He said, ‘Old man, I’ll have you arrested before tomorrow night for drawing that gun on me, and I have got the money to back it.’ Wimer turned around and said, T have got as much money as you have and I’ll show you,-you. You hitch up that horse and get out of here as quick as you can.’ Virge said, ‘I’ll go as soon as I get hitched up.’ Wimer said, ‘You-,’ and began shooting; at that time Virge lacked one tug and a breeching strap of being hitched up; before Wimer turned and started for the house Virge was standing on the north side of the horse, and when Wimer turned he went on the south side and slipped the shafts into the shaft strap and hitched the tug, when Wimer got back to him; Wimer had gone probably twenty feet towards the house before he turned and came back; I didn’t notice exactly, but he was standing from five to six feet from Virge when he went to shooting; I was standing in the front door; there was nothing to obstruct the line of my vision; . . . Harold didn’t make any-kind of motion toward Wimer at the time of or immediately before the shooting; he didn’t advance toward Wimer in any way; . there were two shots fired right together and then a very short pause before the third shot; . . . Harold said nothing at the time of the firing of the first two shots, just whirled and started to run.” The testimony showed that 'Harold was unarmed and that the fatal shot was in the back near the spine. Other members of the Chamberlain family who were present gave substantially the same account of the shooting. The defendant himself testified, among other things, that he heard on the day of the shooting that Virgil was down at Chamberlain’s and heard some one say that he stayed there half óf his time; that when he ordered him away upon that occasion he thought he was there to carry out his threat; but when he got home that evening Harold was sitting on the front porch: “I went around the house to avoid him and to get away and stay away from him; I went upstairs and got my pistol and went out to order him away; I thought he was there to hang around until he got an opportunity to carry out his threats against me; that’s why I went out to order him away and I took my pistol with me; when I went out there I said, ‘Now, Virge, you know the conditions between you and me. What are you doing here? You ought not to be here. I don’t want you here. I want you to go away and stay away from here.’ He swore, ‘-, I will come when I please and go when I please.’ He had his horse by the halter rope, and he dropped .that and throwed his hand down to his hip, and said, ‘--, I will just leave here when I get good and ready.’ I had my revolver in the bib of my overalls and as he throwed his hand down to his hip pocket I covered him and said, ‘Don’t do that, Virge; don’t do that. You go away from here now; this thing has gone far enough between you and me. You go away from here right now.’ He said, Y am going as soon as I hitch up.” I said ‘That’s all right; that’s all that’s necessary,’and I started on back to the house. I went probably eight or ten steps. He said, ‘I am going to get you for this. You-, I am going to get you for this.’ He said several other things while I was walking; he asked Jim, in the first place, if he saw the gun, and Jim told him he did, and he said, ‘I am going to have him in Mound City before to-morrow night. He thinks I am afraid of his-- old gun. I am going to get him for this. I am going to get you for this, you -;’ I turned around and faced back; his horse was facing almost directly to the barn; he was on the opposite side of it, the opposite side from me, and as I turned around I stepped back a step or two towards him, watching' him, and he come right around in front of the horse; just as he come round in front of the horse he said, ‘I will get you for this, you-.’ He carne around with his left arm up and the other one back behind him (here the witness indicated); then I fired; I shot three times as fast as I could pull the trigger; I shot to keep him off of me; I believed he was going to carry out his threat to kill me; when he whirled to run I quit shooting; I watched to see that he did n’t turn and commence shooting at me; I quit shooting as soon as he turned away from me; I did not know at that time that I had hit him at all.” On cross-examination he testified: “Yes, sir, I shot him; I didn’t expect anything else but to hit him; . . . when I started into the yard I saw Virge Harold was there: I went upstairs on purpose to get my gun; when I went out into the barn lot the first thing I saw Harold doing was getting ready to hitch up.” He also testified: “I did not have any idea he was there for any other purpose but watching his chances; I talked calmly to him; I was calm enough to talk to him reasonable; I was n’t in a passion; I was n’t talking when I fired the first shot; I had no other thought in my mind only to keep Virge off of me and to keep him from hurting me; no, sir, I did not at the time fire those shots at Virgil Harold’s body intending to kill him; I intended to stop him; I did shoot right at him.” While for a year and a half the conduct of the deceased toward the defendant and his threats made to and about him, up to the latter part of June, 1914, were inexcusable and atrocious, still the word pictures, of the tragedy itself as already indicated are such that the jury were fully warranted in finding the homicide characterized by sufficient deliberation and premeditation to make it murder in the first degree. The court instructed the jury that if any of them, after having considered all the evidence in the case and after having consulted with his fellow jurymen, should entertain a reasonable doubt of the defendant’s guilt, then they could not find the defendant guilty; that in such case the defendant- could not be acquitted unless each one of the jurors should entertain a reasonable doubt of his guilt. The latter expression is assigned as error. It is said to be open to the construction that unless every one of the jurors entertain a reasonable doubt the verdict must be “guilty.” The instruction is substantially the same as that considered in The State v. Rogers, 56 Kan. 362, 43 Pac. 256, which was to the effect that if any one juror entertain a reasonable doubt of the defendant’s guilt, a conviction can not be had, “ ‘but you can not acquit the defendant unless all the jurors entertain a reasonable doubt.’ ” (Syl. ¶ 3.) In the opinion it was said: “If the minds of the jurors do not so concur, there must he a disagreement. But it is hardly necessary to instruct an American jury touching their right to disagree, for this is universally understood.” (p. 371.) The expression is at least an unnecessary one and its use is not to be-commended, because, as everybody knows, the jury may either convict or acquit or disagree, and it can by no possibility enlighten them to charge that they can not acquit unless they all entertain a-reasonable doubt. However, it does not follow that the expression gave any license to believe that a conviction must be had unless all the jurors entertained a reasonable doubt, and it does not appear that any material prejudice arose from the use of this language. A witness was permitted, over objection, to state that the deceased and one of the Chamberlain boys were good friends. This was for the purpose of showing that Harold was at the Chamberlains’ place on account of this friendship rather than for the purpose of annoying the defendant, and in view of the claim of the latter was competent. While the answer to the question really amounted to a conclusion and the objection, strictly speaking, should have been sustained, still the fact which was shown, that the two young men visited at the homes of each often, would indicate quite strongly that they were good friends, and the conclusion of the witness was not materially prejudicial. A similar objection was made to a question propounded to Robert Chamberlain as to what amounted to an obstruction of the defendant’s view of the deceased from the house. Instead of answering that he would or would not have been in full view, his answer was: “Well, a person naturally could see as big an object as that, though there’s two or three small trees there. No leafy trees or bushes or anything of that kind. Several little maples with leaves all off.” This was a sufficient statement of the facts to render the objection on the ground of stating conclusions without merit. Complaint is made that evidence of another witness of defendant’s attempt to sell his farm prior to the shooting was erroneously rejected. The defendant himself was permitted to. state fully what attempts he had made in this direction. The rejected evidence was not sufficiently important to require reversal on account of this ruling. An offer to prove by a witness that in September, 1909, Virgil Harold assaulted and beat a boy named Richard Glaze and was discharged on account of his quarrelsome nature and disposition, was rejected. The evidence introduced touching the character of the deceased was quite sufficient to show his quarrelsome nature and disposition without going back before the marriage of his mother with the defendant, and no error was committed in rejecting the testimony in question. Finally it is complained that a continuance was not granted’ on account of the absence of a witness who had been subpoenaed but was at home sick and unable to attend the trial. The testimony desired from him would have gone mainly to the character and reputation of the deceased and defendant for quarrelsomeness and peaceableness. In view of the large number of witneses who actually testified touching these matters it can not be said that the trial court abused its discretion in refusing the continuance or that the defendant was substantially harmed or prejudiced by such ruling. The judgment is affirmed.	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The opinion of the court was delivered by Mason, J.: The Stockton Elevator & Shipping Association sued the Missouri Pacific Railway Company before a justice of the peace on account of material it had furnished for the repair of cars in which it had shipped grain between August 5, 1908, and November 25, 1908. The case was taken on appeal to the district court, where a judgment for $231.60 was rendered against the defendant, which appeals. (1) The record shows that at one stage of the proceedings the plaintiff amended its bill of particulars so that a recovery was asked for more than $300. The defendant moved to dismiss the cause because the increase of the amount in controversy carried it beyond the jurisdiction of the court in an appeal from a justice of the peace. The motion was denied, and that ruling is complained of, on the authority of a series of cases, culminating in Thompson v. Stone, post, p. 237, 64 Pac. 969. Affidavits have been presented here for the purpose of showing that prior to the judgment an oral statement was made by the plaintiff’s attorney to the effect that the right to recover more than $175 and interest was waived. The proceedings of the trial court can not be brought upon the record in this manner. (Mason v. Harlow, 92 Kan. 1042, 142 Pac. 243.) It is at least doubtful, however, if the assignment of error referred to is available. The judgment was rendered February 17, 1914; a motion for a new trial was overruled May 5, 1914; and the appeal was taken October 27, 1914, more than six months after the judgment, although less than six months after the overruling of the motion for a new trial. The ruling on the motion to dismiss is not reviewable unless it is such a trial error as to be the basis of a motion for a new trial, and it is said not to fall in that class. (29 Cyc. 760; 4 Enc. L. & P. 333, 334; Galey v. Mason, 174 Ind. 158, 91 N. E. 561.) The question suggested need not be determined by reason of the view taken of another feature of the case. (2) The plaintiff’s claim was based largely upon the furnishing of lumber for grain doors. It was conceded that the material had been furnished, and that the total cost was correctly stated by the plaintiff; but it was not shown what part of the expense was incurred for shipments within the state, or in interstate commerce after November 16, 1908. This is important, because by ruling 78 of the interstate commerce commission, made June 1, 1908, interstate carriers are forbidden to reimburse shippers for such expenses unless expressly provided in their tariffs (Interstate Commerce Commission, Conference Rulings Bulletin No. 6, p. 21), and it was shown that no such tariff provision had been made prior to the date named. The evidence in behalf of the plaintiff was that most of the cars for which the doors were furnished were consigned from Stockton, Kan., to Kansas City, Mo., although the majority of them were actually unloaded at Kansas City, Kan. Shipments of goods consigned to a point in another state constitute interstate commerce, notwithstanding an actual delivery is made before a state line is crossed. (Horse & Mule Co. v. Railway Co., 95 Kan. 681, 149 Pac. 436; Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629.) In the case last cited it was contended that because cattle shipped from a Kansas station were unloaded at the Kansas City stockyards on this side of the state line the transaction was intrastate, but the court said: “A shipment of live stock from a point in this state, consigned to a commission firm in Kansas City, Mo., is interstate commerce.” (Syl. ¶ 2.) (3) It was incumbent upon the plaintiff to show how much material was furnished under such circumstances as to warrant a charge against the company. It could not prevail by showing the total amount of material furnished, including an unascertained number of items for which no charge could be made. “In an action for the recovery of money, it devolves upon the plaintiff, before he is entitled to judgment, to prove by satisfactory and competent evidence what, if any, sum is due him from the defendant.” (Wolfley v. Shuemaker, 4 Kan. App. 38, syl., 45 Pac. 792; Morgan v. Valley Bank, 4 Kan. App. 668, 46 Pac. 61.) The judgment is therefore reversed, and the cause remanded for a new trial.	[ -14, 120, -4, 15, -38, 98, 34, -102, 65, -127, -89, 83, -83, 78, 4, 47, -13, 93, 81, 122, -42, -125, 6, -13, -46, -77, 83, -59, 61, -50, 100, 118, 76, 32, 66, -107, 102, -62, -59, 92, -50, 4, -72, -17, -7, 104, 48, 106, 22, 76, 113, -82, -13, 44, 25, -61, 9, 45, -81, 57, -16, -7, -94, 13, 95, 20, 49, 38, -100, -121, 72, 44, -112, 49, 3, -23, 112, -90, -122, -12, 97, -71, 12, 98, 98, 33, 21, -17, -100, -72, 47, 26, -115, -58, -112, 16, 73, 109, -74, -39, 116, 2, -89, -2, -4, 21, 31, 108, 3, -82, -74, -77, -113, 118, -100, -121, -53, -73, 50, 96, -115, -94, 92, 71, 122, -101, -113, -66 ]
The opinion of the court was delivered by MASON, J.: On the appeal of the plaintiff in this case the judgment was ordered modified with respect to the taxation of costs. (Hazelwood v. Mendenhall, ante, p. 116, 154 Pac. 275.) The defendant had given notice of his purpose to ask a review of rulings with regard to the instructions, and presented a question in that connection which was not mentioned in the original opinion, because, through a misapprehension of the record, it was not thought to be material. The attention of the court was called to the matter and a rehearing was granted upon that feature of the case. (1) The plaintiff suggests that so far as affects the right of the defendant to appéal the judgment fixes the amount in controversy, and as this was less than $100 no' proceedings in the nature of a cross-appeal can be entertained. Where an appeal is properly taken to this court, the amount in controversy being over $100, the practice is to consider all rulings complained of by the appellant, although as to some of them a reversal might not make a difference of that amount in the result. This is illustrated by the fact that in the decision of this case the only contention of the appellant that was sustained had relation merely to the costs — a matter which could not have been the basis of an appeal. Consistently with this practice it must be held that where the court obtains jurisdiction by the appeal of one party, his opponent, having a right under the statutes to what is in effect a cross-appeal (Civ. Code, § 578), may obtain a review of any adverse ruling, although because of the smallness of the judgment against him he could not have appealed in the first instance. This is in accordance with the usual rule, although there are decisions to the contrary. (3 C. J. 432.) (2) The defendant asked an instruction to the effect that, the action being brought under the herd law, which imposes a liability for damages done to crops by live stock permitted by the owner to run at large, no recovery could be had for injuries done on unenclosed land by animals which without the fault of the owner had escaped from a pasture enclosed by a lawful fence, or by an ordinary fence, such as is generally required to restrain that kind of stock. This was refused, and the court instructed that the plaintiff might recover even if the defendant’s cattle had escaped from an enclosure surrounded by a lawful fence, and injured crops upon the plaintiff's unenclosed land before they could be apprehended. The law has been settled in accordance with the view presented by the defendant. (Railway Co. v. Olden, 72 Kan. 110, 112, 113, 83 Pac. 25.) In McAfee v. Walker, 82 Kan. 182, 107 Pac. 637, it was said: “The common law places the responsibility wholly upon the owner of animals to keep them from his neighbor’s premises, and makes him liable for any injury resulting from his failure to do so. The fencing act (Gen. Stat. 1868, ch. 40, art. 1, § 1, Gen. Stat. 1901, §8071) changes the rule and requires the neighbor to protect himself from such injury up to a certain point by erecting a fence of a fixed power of resistance. The adoption of the herd law in turn eliminates the intervening statute and restores the common law, by canceling that requirement.” (p. 185.) The last sentence quoted requires some explanation and perhaps modification. The requirement that the crops shall be protected by a legal fence is canceled by the herd law only so far as relates to animals that are “running at large.” Any that without fault of their owner have escaped from an enclosure surrounded by a barrier reasonably adapted to their restraint are not regarded as within that term, and the definition of a legal fence has reference to that which protects crops, and not to that which restrains cattle within an enclosure. “It was not intended that the fence law should, and it does not, furnish a rule by which to determine whether the owner of stock in herd-law counties is guilty of negligence in enclosing them.” (Railway Co. v. Olden, supra, p. 112.) (3) There seems to have been some evidence warranting the submission to the jury of the question whether the defendant’s cattle had escaped without his fault from an en closure surrounded by a fence reasonably adapted to their restraint. The instructions given and refused relating to this matter were therefore material and the departure from the established rule requires a new trial. Instead of the modification heretofore indicated, the judgment will be reversed and a new trial ordered. The costs in this court will be divided.	[ -16, -4, -35, -83, 27, -32, 42, -104, 65, -87, 103, 83, -23, -45, -124, 111, -14, 93, 85, 105, 84, -73, 23, -61, -14, -13, -109, -44, 57, 78, -25, 95, 12, 48, -126, -43, 102, -126, -63, 84, -114, 15, -88, -51, -23, 32, 48, 10, 22, 75, 53, -97, -29, 44, 24, -61, 41, 40, 59, 41, -47, -7, -86, 15, 111, 0, 19, 118, -72, 71, 88, 46, -112, 57, 3, -24, 114, -74, -106, 84, 41, -71, 9, -122, 98, -127, 109, -17, 24, -24, 47, 93, -113, -90, 16, 16, 75, 96, -74, -97, 100, 116, 7, -4, -20, 5, -35, 108, 5, -113, -106, -77, -49, 100, -72, -41, -18, -89, 16, 101, -51, -86, 93, 71, 118, -101, -113, -34 ]
The opinion of the court was delivered by West, J.: The plaintiff sued to have a certain mortgage declared a first lien on the land involved herein and to have such land sold and his indebtedness paid out of the proceeds. A demurrer to his evidence was sustained and he appeals. The plaintiff owned a farm in Rice county on which the defendants, Sanborn and wife, were tenants. In February, 1913, Sanborn, having contracted to purchase a farm in Greenwood county, had a settlement with the plaintiff by which it appeared that he owed him $1300, for which he was to give a note due in two years, secured by chattel mortgage on all the horses and mules then owned by Sanborn, which was to be ex ecuted by himself and wife. He alone executed such mortgage, retaining a duplicate to be executed by himself and wife and then to supersede the one signed by himself alone, after the removal to Greenwood county and an opportunity to ascertain and insert the location of the property to be covered by such duplicate. Upon arriving in Greenwood county Sanborn found that he needed $1600 to complete payment for and obtain possession of the land for which he had contracted. He and his wife thereupon mortgaged to a bank at Eureka the property, which had already been mortgaged by Sanborn to English, to obtain the $1600, which was used in paying the balance of the purchase price of the land. Sanborn then advised English that he was willing to give him a mortgage on the farm, and it was afterwards agreed between them that English should prepare and transmit a new note and mortgage on the farm to be executed by Sanborn and wife and returned to English, but upon the receipt of such papers Sanborn returned them signed by himself, without acknowledgment and without signature of his wife. Afterwards Sanborn stated to English’s attorney, to whom the papers had been forwarded, that after his wife got less nervous and after his mother-in-law had left, the papers would be executed and acknowledged by himself and wife and delivered according to the agreement. This was not done. August 14, 1913, English filed his petition in this action and service of summons was made on the defendants the next day. A deed conveying the Greenwood county land from Sanborn and wife, bearing date of August 12, 1913, its acknowledgment bearing the same date, to O. W. Hall and E. J. Nelson, was filed for record on the 19th day of September, 1913. It is claimed that in exchange for this Greenwood county land owned by Sanborn, Hall was to purchase a tract of land from one Sutton, about fifteen acres, and also a quarter-section, and convey to one Bradley for the land, which Hall was to have Bradley convey to Sanborn’s wife. Also that before August 12, 1913, Hall had made the arrangement with Bradley to have his deed left in a bank at Fort Scott; that Hall’s deed to Sutton was not acknowledged until August 15, 1913, the day after the petition in this case was filed, and that the deeds to Hall and Bradley were delivered on September 10, 1913. It is contended by the plaintiff that as between him and the Sanborns his mortgage was a lien upon the Greenwood county land, and it is stated that the trial court in its rulings so held. Also that there was testimony which should have gone to the jury on the question whether Hall and Nelson purchased in good faith. Nelson admitted upon the stand that he had received $300 for making the deal and that he acted as agent for Sanborn; that neither he and Hall nor the Sanborns examined the title to the lands exchanged, although he claimed he was familiar with them already; that he would not say that his name was not put in the deed after its execution, and he admitted that it was afterwards that the instrument was made to state that he and Hall owned equal shares in the land described. Nelson had acted as agent for the vendor when Sanborn purchased the Greenwood county land. He denied having any notice or knowledge of the claims of English. It is urged that even if Nelson and Hall purchased without notice of the claim of English they did not record their deed until after the pendency of this suit and therefore can not be heard to deny his rights. The answer of the defendants, Sanborn and wife, was a general denial; that of Nelson and Hall an assertion of the title and denial of notice. The demurrer was sustained as to Nelson and Hall, also as to Sanborn and wife, the court finding that the debt was not yet due, and the action was dismissed as to them without prejudice. While as between English and the Sanborns the former did not literally furnish a part of the purchase price of the Greenwood county land, still by their conduct in using as a basis of credit the property which had already been mortgaged and agreed to be mortgaged to him they deprived him of recourse thereto to secure his debt, and certainly under the pleadings so far as Sanborn is concerned the mortgage signed by him is binding upon him. (Foster v. Bank, 71 Kan. 158, 80 Pac. 49; Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; Bisby v. Quinby, 92 Kan. 86, 140 Pac. 635; Markham et al. v. Wallace, 147 Ala. 243, 41 South. 304; King v. Williams, 66 Ark. 333, 50 S. W. 695; Carter v. Holman et al., 60 Mo. 498; Martin v. Nixon, 92 Mo. 26, 4 S. W. 503; Dulaney v. Willis, 95 Va. 606, 29 S. E. 324, 64 Am. St. Rep. 815; 27 Cyc. 976; 1 Jones on Mortgages, §§ 162-166; 8 M. A. L. 300.) Under all the circumstances shown there are strong equitable reasons why plaintiff’s lien should attach also as against Mrs. Sanborn, both she and her husband being content with a general denial of plaintiff’s petition and both having enjoyed the fruits of the wrongful change of security. (See Foster v. Bank, 71 Kan. 158, 163, 80 Pac. 49.) This being so, the testimony as to the bona fides of the' purchase by Nelson and Hall should have been submitted to the jury for its consideration under proper instructions, the dates of the various instruments and their delivery and acknowledgment, the shifting of title from Sanborn to his wife, the relation of Nelson to the transactions and the conduct of all the parties being such that fair-minded men might reach different conclusions. The question of Nelson, and Hall being purchasers pendente lite as suggested is worthy of very careful consideration when all the evidence shall have been received, but under the present state of the record it is not deemed necessary or proper for determination now. The judgment is reversed and the cause remanded for further proceedings.	[ 96, 108, -107, -82, 74, 96, 10, -104, 122, -95, -96, 91, -85, -126, 29, 101, 97, 9, 69, 107, -41, -77, 7, -117, -110, -13, -31, -51, -79, 93, -91, 87, 77, 32, -54, 23, -26, -32, -63, -108, -114, 4, 41, 76, -47, -62, 52, 57, 52, 73, 17, -113, -9, 44, 53, 75, 105, 44, -5, 41, -112, -8, -118, 15, -37, 6, 49, 6, -118, 5, -54, 46, -104, 49, 9, -7, 115, -74, -122, -76, 73, 25, 8, 54, 102, 16, 29, -17, -56, -104, 14, 126, -123, -90, -128, 88, 26, 72, -66, -97, 122, 16, 6, -10, -19, 5, 9, 104, 7, -54, -42, -125, -113, -68, -103, 2, -13, 13, 48, 113, -49, 98, 93, -25, 58, 27, -117, -79 ]
The opinion of the court was delivered by Marshall, J.: The plaintiff recovered judgment against the Chicago, Rock Island & Pacific Railway Company for injuries sustained while she was a passenger on its railway. The defendant appeals. The plaintiff alleges that she was injured by the defendant’s negligence. The defendant answers that the plaintiff, for a valuable consideration, settled and released her claim for her injuries. The plaintiff replies that this settlement was procured by fraud. The evidence tended to establish the following facts: August 27, 1912, the plaintiff was injured in the yards at Kansas City while a passenger from Chicago to Wichita, on one of the defendant’s trains. The injuries were caused by the jerking or bumping of the car in which she was riding. She signed a train conductor’s report of the accident. The employee who procured this report told her to go and see Dr. Old-ham, the company’s physician at Wichita. Some days after reaching Wichita, the plaintiff, with her daughter, who was a passenger with her mother at the time of the accident, went to Dr. Oldham’s office. The plaintiff then claimed to be suffering. He examined her and told her that he did not find any bruise or .permanent injury or broken skin, but that her neck was swollen, and directed her to go home and bathe her neck with hot water to take the swelling out. The doctor gave this direction as a “placebo.” The plaintiff believed Dr. Oldham’s statement. He did not make any charge for his services. He was, and had been for years, the local physician for the Rock Island at Wichita. Some days after this examination was made, the claim agent of the defendant went to the home of the plaintiff, and on paying her $5 procured her signature to a release. The claim agent stated to the plaintiff, at the time this release was obtained, that the release was for the injury sustained up to the time of signing it, but that the case could be reopened if further injury developed. The plaintiff relied on these statements, believed her injuries were not permanent, and did not want any money from the defendant unless they were so. Her injuries proved to be serious and permanent. January 24, 1914, the plaintiff signed a statement to the claim agent, in which she said: “Regarding my accident at Kansas City on August 27, 1912, while a passenger on a Rock Island train — I remember of reading the release over and then signing it and then receiving a Rock Island check for $5. I do not say that I did not sign the release, but did not think I was injured to amount to anything or think that the injury would result in what it has. I have been laid up'for over 12 weeks which is the result of the injury. My spine was injured in such a way that it has weakened me until I could not walk or get around. I have had a doctor who comes and gives me treatments every other day. I repeat again that I signed the release and thoroughly understood it, and only signed it thinking that I was not seriously injured — in fact, I did not know how bad I was injured, as I was told by Dr. Oldham that I was not hurt to amount to anything.” January 23 she wrote the agent. This letter contained the following language: “As I have already acknowledged, I signed the paper with the assurance that the hurt wasn’t anything serious; which has proved itself not so.” The jury returned answers to special questions as follows; “Q. 1. Did you find that Dr. Hoffman examined and treated plaintiff in October or November, 1912, for pain in the region of the back and neck and nervousness? Ans. We find -he examined her. “Q. 3. Do you find that plaintiff on or about January 23, 1914, wrote the Rock Island claim agent, George Kimmerle, a letter in which, among other things, she said: ‘As I have already acknowledged, I signed the paper with the assurance that the hurt wasn’t anything serious?’ Ans. Yes, at that time. “Q. 4. Do you find that plaintiff on or about January 21, 1914, signed and gave to the Rock Island claim agent, George Kimmerle, a statement containing among other things the following: ‘I remember of reading the release over and then signing it and then receiving a Rock Island check for $5,’ and ‘I repeat again that I signed the release and thoroughly understood it?’ Ans. Yes, through misrepresentation. “Q. 5. If you find from the evidence that plaintiff was defrauded into giving the release in question, state in what such fraud consisted. Ans. Misrepresentation. “Q. 6. Do you find that the Rock Island check or draft to plaintiff’s order for $5 which plaintiff received from claim agent Kimmerle at the time of the settlement in question was retained by plaintiff from September 12, 1912, until she endorsed and had it cashed on or about December 28, 1912? Ans. Yes. “Q. 9. On the occasion of the conversation with Dr. Oldham when Mrs. Ladd claims to have been misled by him, did Dr. Oldham know of any contemplated settlement with the Rock Island, or negotiations therefor? Ans. We believe he did. “Q. 10. Do you find that at any time after the accident and before she got home to Wichita plaintiff complained of any trouble with her head, neck, spine, and nervousness? Ans. We do.” 1. The defendant relies on the release. The plaintiff says that the release was procured by fraud; that it was signed by her under a mistake of fact; and that it was never intended to be a release for the damages on account of the injuries sustained by her. The findings of the jury support her contention as to fraud. The evidence sustains her position as to the mistake on her part, and that the release was not intended to be a satisfaction of the damages for permanent injuries sustained by her. She, Dr. Oldham and the agent believed that the injuries were not serious or permanent. The evidence tends to show that the $5 was a gratuity on account of the annoyance and inconvenience that she had suffered. Under these circumstances the release is not binding. This case is within the rule announced in Railway Co. v. Goodholm, 61 Kan. 758, 60 Pac. 1066. Authorities are ample to sustain an avoidance of this release on account of the mistake of fact made by the plaintiff. (Bertha v. Regal Motor Car Co., 180 Mich. 51, 146 N. W. 389; Great Northern Ry. Co. v. Fowler, 136 Fed. 118; Johnson v. Chicago, M. & St. P. Ry. Co., 224 Fed. 196; St. Louis, I. M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S. W. 803; St. Louis & S. F. Ry. Co. v. Richards, 23 Okla. 256, 102 Pac. 92; 34 Cyc. 1055, 1058; Nelson v. Chicago & N. W. Ry. Co., 111 Minn. 193, 126 N. W. 902, and note appended to this case in 20 Ann. Cas. 748, 750-753, on “Avoidance of release of claim for personal injuries on account of misstatements by physician as to nature of injuries”; Note, 11 L. R. A., n. s., 201; Note, 48 L. R. A., n. s., 449.) 2. The defendant complains of the evidence of the plaintiff concerning what Dr. Oldham said at the time he examined her, for the reason that he was not shown to have been acting for the company in making that examination. Circumstances are against the defendant in this contention. The plaintiff told Dr. Oldham that she had been sent there by the defendant’s agent. He examined her injuries, but made no charge for his service. For a number of years he had been the company’s doctor at Wichita, and the plaintiff had been directed to go to him by the company’s agents while in the performance of their duty. There was no error in admitting this evidence. 3. The defendant complains of the instruction to the jury that, if they found for the plaintiff, in determining the amount of recovery they might consider how far the injuries were reasonably calculated to and would with reasonable certainty impair the plaintiff’s capacity to earn a livelihood in the future. The defendant contends that there was no evidence to justify such an instruction. While such evidence was admissible, yet the judgment will not be reversed because it was not introduced. If the plaintiff never earned any money, never performed any service of any value for any other person, still it would be proper for the court to submit this question to the jury. “A person whose capacity to labor has been permanently diminished by physical injury wrongfully inflicted upon him by another can recover damages therefor, notwithstanding there may have been no proof as to what such person’s earnings were before or after the injury.” (City Council of Augusta v. Owens, 111 Ga. 464, syl. ¶ 8, 36 S. E. 830.) (See, also, Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837; O’Connor v. Railway Co., 144 Iowa, 289, 122 N. W. 947; Dallas Consol. El. St. Ry. Co. v. Motwiller, 51 Tex. Civ. App. 432, 112 S. W. 794; City of Louisville v. Tompkins, (Ky. 1909) 122 S. W. 174; Storrs v. Los Angeles Traction Co., 134 Cal. 91, 66 Pac. 72; Melone v. Sierra Railway Co., 151 Cal. 113, 91 Pac. 522; Washington v. Pacific, etc., Ry. Co., 14 Cal. App. 685, 112 Pac. 904; Fisher et al. v. Jansen, 128 Ill. 549, 21 N. E. 598.) 4. The defendant complains of the court’s refusal to submit the following special questions: . “Question 2. If you find that plaintiff, discovered or noticed any injuries or ailments after giving the release that she did not discover or notice before, state as nearly as you can what date plaintiff first noticed or discovered such subsequent injuries or ailments. “Question 5. If you find from the evidence that plaintiff was defrauded into giving the release in question, state in what such fraud consisted and through whom it was committed. “Question 7. If you find from the evidence that plaintiff was induced by any alleged representation of Dr. Oldham to sign the release mentioned in evidence, do you find that plaintiff would have refused to sign said release but for such representations on the part of Dr. Oldham? “Question 8. If you find from the evidence that plaintiff was induced by any alleged representation of Dr. Oldham to sign the release mentioned in evidence, do you find that Dr. Oldham believed such statements to be true when he made them to plaintiff? In Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83, this court said: “Each special interrogatory submitted to the jury should be so framed as to present distinctly a single material fact involved in the issues of the case." (Syl. ¶ 3.) The second question was compound and complex, and was immaterial. The fifth comes within the objections named in Anderson v. Heasley, 95 Kan. 572,. 148 Pac. 738. It likewise was a compound question. The seventh was entirely speculative. In Manley v. Railway Co., 82 Kan. 211, 212, 107 Pac. 540, it was held that there was no error in refusing to submit questions substantially like the eighth. While these questions might have been submitted, it was not reversible error to refuse to do so. 5. The defendant contends that the answers to questions four and nine have no evidence whatever to support them; that the jury should have been required to make definite its answer to question five; and that the answers to special questions were evasive and equivocal. The answer to question four is in effect “yes,” although there is the qualification that the release was signed through misrepresentation. This is supported by evidence. The answer to the ninth question is not a direct answer either way, although there was evidence from which the jury could have given an affirmative answer. The answer to question five is definite and is sufficient. The answers to all the questions, although cautious, are sufficiently direct to enable any one to understand them. There may be, and probably is, some justification for the argument of the defendant on these questions, but on the whole we think substantial justice has been done, and that the judgment should not be reversed because of the slight departure from strict rules in the answers. We do not find any substantial error in the trial of this cause, and the judgment is affirmed.	[ -80, 106, -92, -113, 74, 102, 42, -46, 97, -127, -90, 115, -83, -63, 5, 47, -26, -67, -48, 99, 86, 51, 23, -85, -46, -45, 123, -51, -79, 122, 100, -44, 77, 48, 10, -107, 102, 75, 81, 24, -50, 52, -24, -24, 89, -96, 48, 123, -122, 68, 113, -101, -5, 106, 28, 87, 45, 45, 107, -87, -112, -16, -118, -123, -3, 18, 3, 4, -66, 39, 88, 12, -104, 49, 2, -84, 114, -10, -126, -12, 109, -119, 68, 102, 98, 113, 21, -81, 120, -68, 47, 122, 13, -89, -78, 8, -85, 13, -66, -103, 101, 84, 7, -8, -7, 69, 25, 36, 9, -101, -74, -79, -33, 36, 30, 31, -17, -91, 55, 101, -52, 50, 93, 7, 122, -101, -97, -66 ]
The opinion of the court was delivered by West, J: Plaintiff sued to recover on an accident insurance policy for the death of her husband, alleging that he received his injuries by the burning of a grocery store while he was therein. The clause of the policy relied on by the plaintiff provided for the payment of $2400 for death caused “(4) By the burning of . a Dwelling, Hotel, Office Building, Theatre, School Building, Lodge Room, Club House, Store or Barn, while Assured is Therein.” Several members of the family were in the building at the time of the injury, and the testimony was, in substance, that the day was very hot, the store building was about eighty feet long north and south, a coal-oil tank being in the southeast corner, an elevator on the west, a cashier’s desk about twenty-five feet north of the elevator. About five-thirty in the evening the deceased went back to the tank to pump three gallons of oil into a five-gallon can, and was pumping it from a measuring tank of oil. An explosion occurred, after which the deceased was seen getting up from the floor. One witness looked towards the southeast corner of the store, and all he could see was flames; did not see the decedent then, but did in a minute or two. The latter ran out of the building enveloped in flames and threw himself into a water tank. He had on a pair of pants and a shirt, which were found saturated with coal oil. The fumes of kerosene could be smelled in the room after the explosion, but none was burned except what was in the five-gallon can. The main tank was not affected. The five-gallon can was found split open, but the cap was still on the spout, the latter being blown from the can and about.fifteen feet therefrom. Flames were seen in the southeast corner of the store; fire ran to the north door, some sixty or seventy feet. A refrigerator and all articles within twenty-five feet of the back end, and the floor, were burned. Ceiling, shelving and counters' were burned. Fire ran clear to the north door, sixty or seventy feet, and broke the plate glass in front; collected $900 loss on building from insurance company. The bums were first, second and third degrees, on the neck, fight ear, right arm, back and abdomen, causing death in about one week. One witness testified that before the deceased reached the tank he looked like a ball of fire; that the upper part of his clothing was mostly burned off; left leg of trousers burned; pulled the back of the trousers off and pulled a button out of the flesh with the clothing; burned more by the collar, under the ear, than any other place. The father testified, among other things, that the building was not on fire prior to the explosion; that the decedent got up immediately after the explosion and ran out •of the building, his clothing on fire; also that the noise attracted his attention; he looked southeast towards the comer of the store and all he could see was flames. In a minute or two the decedent “came from under there, was thrown down and he came out and I saw him then. He raised up and run out of the building, from the flames to the door.” Also that he looked that way the instant he heard the explosion “and saw Albert come out of flames . . . Albert was afire and ran ahead and I followed him out.” The widow testified guite similarly, stating, among other things, that she did not see any fire prior to the explosion, but she heard the explosion, looked southeast “and saw flames and smoke, she later saw her husband, he was on his hands and knees starting to get up. He started and ran towards front of the store, his clothing was on fire then.” Plaintiff recovered and the defendant appeals, the principal contention being that the facts did not show liability except for a minor sum under another clause of the policy, which sum was tendered by the defendant. It is claimed that the evidence did not show that the deceased caught on fire from the building, but only that the building itself caught on fire after the explosion, and did not show at what point or time the deceased received his injuries. The jury were instructed that if the accident was caused by fire which burned wholly or in part a store building while the deceased was therein, and that the required proofs of death were furnished, the plaintiff was entitled to recover, but that if he received his injuries from any other source, whether prior to or simultaneous with the accident which set fire to the building, the amount sued for could not be recovered; that some part of the building or of the material of which it was composed must have been consumed by the fire, and not merely blackened by smoke or scorched by heat. The defendant insists .that the death was caused by an explosion, and not by the burning of the building within the terms of the policy; that the explosion of the coal oil in the small can set fire to the building; that the oil was sprayed upon his clothing, which burned by reason of the oil therein, and that “The only rational conclusion to be drawn from all the undisputed facts is that deceased’s injuries were due to the explosion of the can of coal oil, and that the burning of the building did not contribute to them and was only an incident to the explosion.”. There was no dispute as to the facts, save as the witnesses gave different versions and word pictures of the scene in various parts of their testimony, and while, it does appear that the building itself was partially burned, it seems beyond question that the explosion of the can and not the burning of the building caused the death. Manifestly the decedent was- out of the building before the fire had made any progress towards consuming any portion of the building, and it could not have been the burning of the building while he was therein which caused his death. This being apparent, it was error to overrule the demurrer to the plaintiff’s evidence and submit the caseto the jury, and refuse the defendant’s request for an instructed verdict. Other matters are discussed, but in view of this conclusion they do not require consideration. The judgment is reversed and the cause remanded with directions to render judgment for the amount tendered by the defendant in its answer.	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The opinion of the court was delivered by Marshall, J.: The plaintiff- recovered a judgment for $8000 for the loss of two fingers and an injury to a third one on his left hand, caused by the defendant’s negligence. The defendant appeals. The plaintiff was injured while attempting to board one of the defendant’s passenger trains. On the next day, about twelve hours after the injury and while the plaintiff was under the influence of ansesthetics administered to him during the amputation of his fingers, the defendant’s claim agent went to the hospital to see the plaintiff and informed him that when he desired to settle the claim against the company to call him, the claim agent. The afternoon of that day the claim agent was called and settlement was made by which the defendant paid the plaintiff $450 and agreed to pay his doctor bills and hospital charges. The plaintiff was then still under the influence of anaesthetics and knew nothing of this settlement. About two weeks thereafter he was discharged from the hospital and was informed of the settlement by his wife. Two months after being discharged from the hospital the plaintiff wrote A. H. Webb, the defendant’s superintendent at Wichita, as follows: “I am the man that was hurt in Wichita Yard at Station. And I was advised to write you in regards to position. As I only have one hand at present it is impossible for me to hold the place as order Clerk, at Wichita Wholesale Groe Co and I would like some kind of position with your company, as I settled fairly with the Company and without any trouble. I have several Friends on the Mo. Pac. Ry. for Reference.” 1. The defendant argues that this letter ratified and confirmed the settlement. The plaintiff contends that he was induced to write this letter by fraud on the part of the defendant. The evidence on this question shows that the plaintiff wrote the letter at the suggestion and in the presence of Bruce Cornet, who stated to the plaintiff that he was the special agent of the defendant, and said in substance that if the plaintiff would write to Superintendent Webb he could probably place the plaintiff in a position in the service of the company. The letter was delivered to Bruce Cornet, and by him given to Webb. Webb referred the letter to the claim agent that made the settlement for the defendant, and tried to find a position for the plaintiff. No position was found for him. This action was begun two months later. There was no evidence that any promise of a position of any kind was made to the plaintiff to induce him to write the letter; neither was there any evidence to show that any suggestion was made as to what the letter should contain. Was there evidence sufficient to warrant the court in submitting to the jury the question of fraud in inducing the plaintiff to write the letter? What circumstance shows fraud? None that we can see. The suggestion might have been fraucE ulently made, but there is no evidence of any kind to show that it was so made. “Good faith is presumed, and need not be proved.” (Weybrich & Co. v. Harris, 31 Kan. 92, syl. ¶ 3, 1 Pac. 271.) Fraud is never presumed. It must be established by evidence. (Long Bros. v. West & Co., 31 Kan. 298, 1 Pac. 545; Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890; Bliss v. Couch, 46 Kan. 400, 403, 26 Pac. 706; Gleason v. Wilson, 48 Kan. 500, 29 Pac. 698; Hasie v. Connor, 53 Kan. 713, 720, 37 Pac. 128; Richolson v. Freedman, 56 Kan. 463, 466, 43 Pac. 772; Gilmore v. Swisher, 59 Kan. 172, 52 Kan. 426.) We are not unmindful of the fact that fraud is rarely susceptible of positive proof, but that does not dispense with the necessity of producing evidence to show that fraud existed. It is not enough to produce evidence to show that fraud might have been practiced. Evidence must be introduced to show that fraud was practiced. That evidence need not be direct; it may be circumstantial, but it must be sufficient to convince a reasonable man that fraud existed. (6 Eneyc. of Ev. 50, 51.) “A charge of fraud can not he sustained by mere insinuation and suspicion, strained inference, doubtful or suspicious circumstances, or mere conjecture; and evidence which produces a vague misgiving is not enough. Where the evidence is capable of an interpretation which makes it equally as consistent with defendant’s innocence as with his guilt, that meaning must be ascribed to it which accords with his innocence.” (20 Cye. 121.) Applying these rules, we must conclude that there was not evidence sufficient to warrant the court in submitting to the jury the question of fraud in inducing the plaintiff to write the letter to Webb. 2. What was the effect of the letter? The plaintiff said, “I would like some kind of position with your company, as I settled fairly with the Company and without any trouble.” A shorter statement is, “I setted with the company.” The defendant contends that this constitutes a ratification of the release signed by the plaintiff. The court in effect instructed the jury that the letter ratified the settlement unless the letter was procured to be written by fraud. “A ratification is defined to be the confirmation of a previous act do,ne either by the party himself or by another; it is the confirmation of a voidable act. 23 Am. Eng. Encycl. L. 889. And.a confirmation neces sarily supposes a knowledge of the thing ratified. Blen v. Bear River, &c., Mining Co., 20 Cal. 613; San Diego Railroad Co. v. Pacific Beach Co., 112 Cal. 53. It follows, then, that in order to constitute a ratification there must be an acceptance of the results of the act with an intent to ratify and with full knowledge of all the material circumstances. Ansonia v. Cooper, 64 Conn. 544.” (Russell v. Erie Railroad Co., 70 N. J. Law, 808, 816, 59 Atl. 150, 67 L. R. A. 433, 437.) The letter is before us. Its language is clear and plain. Parol evidence is generally inadmissible for the purpose of ■showing that the words used were not intended to have the legal effect ordinarily following their use. (Gowans v. Pierce, 57 Kan. 180, 45 Pac. 586.) “The construction of written instruments is a question of law for the court, and ordinarily it is error to submit such a question to the jury.” (Shear Co. v. Thompson, 80 Kan. 467, syl. ¶ 1, 102 Pac. 848.) (See, also, Warner v. Thompson, 35 Kan. 27, 10 Pac. 110; Bell v. Keepers, 37 Kan. 64, 14 Pac. 542; Cosper v. Nesbit, 45 Kan. 457, 25 Pac. 866; Ellis v. Woodruff, 88 Kan. 734, 738, 129 Pac. 1193; 9 Cyc. 591.) “But where the construction of a written contract depends upon extrinsic facts as to which there is a dispute, its construction is a mixed question of law and fact, and is for the jury under proper instructions from the court.” (9 Cyc. 591.) The construction of this letter does not depend on any extrinsic fact about which there is a dispute. The plaintiff made the settlement. At the time he made it he was under the influence of anaesthetics. That fact does not modify the meaning to be attached to the language used in the letter written when not under the influence of anaesthetics. What did the plaintiff mean when he said, “I would like some kind of position with your company, as I settled fairly with the Company and without any trouble?” There is only one answer. That answer is, “I settled with the company.” If he settled with the company this action is at an end. By using that language the plaintiff in effect said, “Any claim I may have had against the company has been settled.” He then recognized that he had settled with the defendant, acknowledged that settlement as such, and confirmed and ratified it. The judgment is reversed. It is directed that judgment be entered for the defendant.	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The opinion of the court was delivered by MASON, J.: The city of Topeka accepted a tract of land given to it for the purpose, and on the condition, that it should be used as a public park, “for the benefit of the health, comfort, and recreation of the citizens of Topeka and their friends, and such other orderly persons as may resort thereto.” The deed of gift contained a provision that “said real estate shall be inalienable by said city of Topeka, either by way of deed, conveyance, lease, or in any other manner, and shall be forever held and used for the purposes aforesaid.” Luther C. Bailey, who owns land facing on that referred to, brings an original action in this court in the nature of quo warranto, asking that the city and its officers be ousted from the power which they are undertaking to exercise, of using the park for other than public purposes, and in such a manner as to violate the terms of its dedication. The case is submitted upon the pleadings. Prior to answering the city filed a motion to dismiss, on the grounds, (1) that the court had no jurisdiction to hear the case, (2) that the allegations of the petition did not show an illegal exercise of power, and (3) that the plaintiff had no peculiar or specific interest different from the citizens of Topeka as a whole. The motion was overruled, the first ground being regarded as not well taken, and the others as involving the sufficiency of the petition, and proper to be raised rather by a demurrer than by a motion to dismiss. Whether the plaintiff has or claims any such peculiar interest in the use to which the park is put as to enable him to maintain an action to restrain the city from wrongful conduct in its management may well be doubted. An abutting owner may sometimes sue to prevent a diversion of public property from the uses for which it was acquired. (Comm'rs of Franklin Co. v. Lathrop, 9 Kan. 453; Note, 1 L. R. A. 725.) But whether the plaintiff is within that rule need not be determined, by reason of the conclusion reached on the other branch of the case. (1) The action of the city of which complaint is made consists of the granting to individuals, for pay, of exclusive rights within the park to operate refreshment and lunch stands, and to rent boats and provide suits, towels and rooms for bathers, at fixed prices. A free dressing pavilion is provided for bathers using their own suits and towels. Apparently there is nothing to prevent any one from using his own boat on the pond, should he so desire. We see nothing in the conduct referred to that is inconsistent with the public character of the park, or that conflicts with the terms of the gift. The exclusive character of the privilege conferred is not the basis of any legitimate objection. For as no one has a right to engage in the activities referred to except by permission of the city, no one is wronged by the monopoly created. The concessions granted do not amount to the leasing of any part of the park. (The State, ex rel. Attorney General, v. Schweickardt, 109 Mo. 496, 19 S. W. 47.) Nor do they involve the loss of control over it by the public officers. Clearly it is not inconsistent with the conditions imposed by the donor of the property that visitors to the park should be aiforded facilities for obtaining refreshments, for boating and for bathing. No reason exists why they should not pay a fair price for what they eat or drink, or for the boating or bathing equipment they use. The city might through its employees furnish these conveniences directly, collecting reasonable charges therefor. The’ fact that a profit resulted would not render the transaction objectionable. The incidental revenue would not characterize the transaction as commercial rather than governmental. Substantially the same result is accomplished by authorizing certain individuals to attend to the business of supplying the wants of the public with respect to the matters referred to, retaining so much of the proceeds as will fairly compensate them for their services and investment, and turning the residue over to the city. The following text, and the cases supporting it, are in point at least to the extent of indicating that the facilities undertaken to be supplied are appropriate to the conduct of a public park: “Under a power to control and regulate parks the municipal authorities may provide for the pleasure, amusement, comfort, and refreshment of persons frequenting them, which in their discretion they may do by granting privileges to private persons to furnish food or refreshments, or means of innocent entertainment, with the right to erect necessary structures incident thereto which will not interfere with the rights of the public, and may give a license to use a building in a park for the purpose of a restaurant, which rights and privileges may be made exclusive, the municipality in all cases retaining the right of regulation and control over the manner of conducting the business." (28 Cyc. 938.) The suggestion is made that, if the present course of the city officers is held to be legitimate, there is nothing to prevent them at their pleasure from turning the park into a mere amusement resort, abounding in alluring catchpenny devices and dominated by a spirit of commercialism. This does not follow. That the power of regulation and management might be so abused as to warrant the interference of a court may be conceded. But we find in what has already been done no close approach to the danger line. (2) It is argued that special statutory authority would be required to enable the city to pursue the course of which complaint is made. A member of the city commission is designated as the “commissioner of parks and public property.” (Gen. Stat. 1909, § 1235, amended by Laws of 1913, ch. 84, § 2.) The commission is empowered to “regulate” parks. (Gen. Stat. 1909, § 1280.) “A park may be devoted to any use which tends to promote popular enjoyment and recreation.” (3 Dillon’s Municipal Corporations, 5th ed., § 1096, p. 1749.) The furnishing of the conveniences referred to is a proper incident to the management of the park, and the method followed is so naturally adapted to the desired end that it must be regarded as a matter of administrative detail, not necessary to be specifically authorized by the legislature. Judgment is rendered for the defendants.	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The opinion of the court was delivered by Porter, J.: The bishop of the diocese of Salina of the Protestant Episcopal church brought suit to enjoin the taxing officers from placing upon the tax rolls the residence of the bishop, claiming the property to be exempt under the statute. The court denied the injunction and plaintiff appeals. The facts found by the trial court are these: “1. The plaintiff, Sheldon M. Griswold; is a Bishop of the Episcopal Church, his title being Bishop of Salina. The District over which he has jurisdiction comprises all that portion of the State of Kansas that lies West of the Sixth P. M. “2. The property in controversy in this action is the South half of lot number 6, on South Santa Fe Avenue, in the City of Salina, Saline County, Kansas. It has a frontage of 77i feet, and a depth of 202 feet, and is less than one-half acre in area. “3. The plaintiff is a married man and occupies the said property with his family as a residence, and has so occupied the same ten years last past. “4. The plaintiff has charge of all the churches in his said district, and he is directly responsible for the work of the Church therein. The said work is carried on by priests sent to their various charges by the plaintiff as his representatives. “5. The church in Salina, Kansas, is .called a Cathedral. It is owned by a church society called the Cathedral Chapter. This society is a corporate body, organized and existing under the laws of the State of Kansas. There is no other church of the Episcopal denomination in said Salina. “6. Two priests, a Canon and a Dean, carry on the work of the church in the Cathedral. These priests work under the direction of the plaintiff, the Bishop of Salina. The Dean is the immediate minister of the congregation that worships in the Cathedral, but at times the plaintiff, as Bishop of Salina, performs all the functions of the office of Dean. By giving the Dean a three days’ notice the plaintiff can supersede him in the matter of conducting services in the Cathedral. “7. Plaintiff, as Bishop of Salina, preaches and conducts services on stated occasions in all the churches of his district. “8. The Cathedral Chapter is also the owner of the building called the Deanery, which is the dwelling house or residence of the Dean of the Cathedral. This building is also situated in the. city of Salina. “9. The Deanery has always been treated by the authorities of Saline County as exempt from taxation, as the residence of the Dean. or pastor of the congregation that worships in the Cathedral. It was so treated by said authorities at all times mentioned in plaintiff’s petition. “10. The property in controversy is not owned by the Cathedral Chapter. The title is in plaintiff and his successors, as Bishop of Salina. “11. The real estate described in plaintiff’s petition, being the property in controversy in this action, was assessed for taxation for the year 1912, and the taxes thereon for that year were duly levied and placed on the tax rolls of Saline County, Kansas, for that year. The tax rolls were delivered to the County Treasurer of said county for collection on November 1st, 1912. Thereafter the said County Treasurer proceeded to the collection of said taxes upon said property in manner provided by law, and advertised said property for sale for said taxes, said sale to be had at the said County Treasurer’s office, in the courthouse in the city of Salina, in said Saline County, on the 2nd day of September, 1913, and but for this action the said County Treasurer would have sold said real estate at the said sale for the collection and payment of said taxes for the year 1912. “12. Said property was assessed for taxation for the year 1913. The taxes for that year were levied upon said real estate and were placed upon the tax rolls of said Saline County by the County Clerk of said County. Said tax rolls were delivered to the County Treasurer by the County Clerk on November 1st, 1913, and unless restrained and enjoined the said County Treasurer will proceed to the collection of said taxes and the sale of the said property in manner as provided by law. “13. T. P. Quinn is the regularly elected, qualified and acting Treasurer of said Saline County, and said Amos Godfrey is the regularly elected, qualified and acting Clerk of said County. “14. The Cathedral, under the laws of the Episcopal Church, is the Bishop’s Church. The plaintiff may, when he chooses, perform any of the duties of pastor of the Cathedral in the city of Salina, Kansas.” That part of the exemption statute under which plaintiff contends the property is not subject to taxation reads: “First, all buildings used exclusively as places of public worship, as public school-houses, or both, with the furniture and books therein contained and used exclusively for the accommodation of schools and religious meetings, together with the grounds owned thereby, not exceeding in any one case ten acres, if not leased or otherwise used with a view to profit; and also any parsonage or dwelling owned by any church society and occupied by its pastor as a residence, together with the ground on which it is situated, not exceeding in any one case one-half acre.” . . . (Gen. Stat. 1909, § 9216.) There is no contention by the defendants that the residence of the pastor of the Episcopal church at Salina is not exempt, and the controversy turns upon the question, Who is the pastor of that church? The court finds as a fact that the immediate minister of the congregation using the church as a place of worship is the dean, - and that his residence, known in church parlance as the deanery, has always been treated by the taxing officers as the residence of the pastor of the congregation within the contemplation of the statute and as exempt from taxation. The court finds that plaintiff, as bishop of the diocese, may, by giving the dean three days’ notice, supersede him in conducting services in the cathedral, and that, as bishop, the plaintiff preaches and conducts services on stated occasions in all the churches in his district. The plaintiff insists'that the language of the statute, “and also any parsonage or dwelling owned by any church sqciety and occupied by its pastor as a residence,” is broad enough to include the property in question, because the Salina church or cathedral is known as the “Bishop’s Church,” the head church of the diocese, the one from which the plaintiff exercises his authority over the entire body of churches in his jurisdiction. It is said that the facts bring the plaintiff within the definition of “a pastor,” as declared in the case of Presbyterian Church v. Myers, 5 Okla. 809, 50 Pac. 70, as follows: “A pastor is one who has been ‘installed according to the usage of some Christian denomination in charge of a specific church or body of churches.’ ” (p. 825.) 'The ecclesiastical definition of a pastor as given by Webster is, “a minister having the charge of a church and parish.” Of course, the plaintiff is a pastor in charge of a body of churches, but is he the pastor of the church at Salina? Is he “its pastor” within the contemplation of the statute? We think there can be but one answer to this question, and that the trial court determined it correctly. The plaintiff is no more the pastor of the church at Salina than he is the pastor of each and every church in his diocese. The fact that the cathedral at Salina is called the “Bishop’s Church” to distinguish it from the other churches in his jurisdiction does not constitute him its pastor. The particular church at the national capital which the nation’s chief executive attends is usually called the “President’s Church”; but mere names and appellations are not controlling. The almost universal rule is, that each church congregation has but one pastor. There are at this time in Kansas possibly a half-dozen exceptions to the rule. If the legislature intended to exempt from taxation more than one parsonage for each congregation it would doubtless have said so in express terms. Taxation is the rule; exemption is the exception, and statutes granting exemption from taxation are construed strictly. “Any person or corporation claiming immunity from the common burdens of taxation, which should rest equally upon all, must bring himself or itself clearly within the exemption; and hence a provision creating an exemption from taxes must be construed strictly.” (Stahl v. Educational Assoc’n, 54 Kan. 542, syl. ¶ 1, 38 Pac. 796. See, also, Mason v. Zimmerman, 81 Kan. 799, 106 Pac. 1005.) The fact that before the bishop has authority to conduct the regular services in the cathedral he must give the dean three days’ notice, when for that particular occasion he supersedes the dean, shows, we think, beyond controversy that except on these stated occasions the authority of the dean as pastor of that church or parish is superior to the authority of the bishop, and that it can not be said that the bishop’s relation to the church or parish at Salina is that of “its pastor.” In our opinion, upon the facts as found, the plaintiff is not regarded by the Episcopal church as the pastor of any particular church, society or parish within his jurisdiction. He is a pastor with certain authority over all the churches in his jurisdiction, but the work of the local church is carried on by the local pastor, who is called the dean. As we construe the statute, the church at Salina is entitled to have the residence of its pastor exempt from taxation. 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The opinion of the court was delivered by Porter, J.: This is an action to recover treble damages for the malicious destruction of trees. Plaintiff and defendant own adjoining farms, and the trees destroyed were six shade trees which plaintiff alleges were growing on his land near the partition fence. There was a verdict and judgment in favor of defendant, from which the plaintiff appeals. The specifications of error in plaintiff’s brief are, first, the admission of incompetent and immaterial testimony over his objections; second, the rejection of competent testimony offered by the plaintiff; third, overruling the motion for a new trial; fourth, rendering a verdict for defendant; fifth, ordering a judgment for defendant. The case was submitted to a jury on evidence and instructions, and no judgment was ordered, so the fifth assignment need not be considered. At the outset we are confronted with the objection which defendant makes to any consideration of the first and second specifications, which relate to the admission of evidence, because they are raised for the first time in this court. As the principal questions argued in plaintiff’s brief relate to the rulings of the court admitting certain testimony offered by the defendant, it will be necessary to consider the grounds of the motion for a new trial. The grounds are stated as follows: “Now comes the plaintiff and moves the court for a new trial of the issues at law and fact in the above entitled case for the reason that the verdict is contrary to the evidence. And for the further reason that the verdict is contrary to law as given under the influence of passion and prejudice, and not a fair consideration of the evidence, and for the further reason that the plaintiff did not have a fair trial.” Nowhere is there any reference to rulings of the court on the admission of testimony. A new trial was asked, first, because the verdict is contrary to the evidence; second, because it is contrary to law as “given under the influence of passion and prejudice, and not a fair consideration of the evidence”; and third, because the plaintiff did not have a fair trial. The amended code provides that a new trial may be granted on the application of the party aggrieved when it appears that his rights are “substantially affected”: “First, because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case. “Second, erroneous rulings or instructions of the court. “Third, that the verdict, report or decision was given under the influence of passion or prejudice. “Fourth, that the verdict, report or decision is in whole or in part contrary to the evidence. “Fifth, for newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. “Sixth, that the verdict, report or decision was procured by the corruption of the party obtaining it.” (Civ. Code, §305.) The third reason stated in the motion — “that the plaintiff did not have a fair trial” — is not a statutory ground unless it be made to appear that he was prevented from having a fair trial by one of the six grounds set forth in the statute. There is nothing in the motion challenging the attention of the trial court to the principal claim now raised in this court, that incompetent or immaterial testimony in favor of defendant was admitted over the plaintiff’s objections. The purpose of a motion for a new trial is to inform the trial court what errors are relied upon, in order that the court may, by granting a new trial, correct any error shown to exist. It would not be fair to the other litigant, nor fair to the trial court, nor to this court, if a defeated litigant were permitted to secure the reversal of a judgment on grounds not presented to the court below. If there be reversible error in a verdict or judgment the interests of justice and of both parties as well as of the public are best served by the granting of a new trial at once rather than after the delay and costs incident to an appeal. It is precisely for the same reasons that the amended code (§ 307) requires that where the exclusion of evidence is relied upon,' the excluded evidence must be produced before the trial court so the trial judge may pass upon it and determine whether a new trial should be granted. (Thompson v. Thompson, 94 Kan. 168, 171, 146 Pac. 344; Broady v. Fire Association, 94 Kan. 245, 146 Pac. 343.) “Only such matters as were considered by the trial court are open to review in the supreme court.” (Brock v. Corbin, 94 Kan. 542, syl. ¶ 4, 146 Pac. 1150.) In a recent case (Washbon v. Bank, 86 Kan. 468, 121 Pac. 515) it was ruled as follows: “Certain evidence was admitted over the objection of plaintiffs. No complaint of the ruling was made in the motion for a new trial. Held, that the question can not be raised in this court.” (Syl. ¶ 1.) The errors of which the plaintiff now complains respecting the admission of testimony would have been sufficiently set forth if in his motion for a new trial he had merely alleged “erroneous rulings” in the language of the second ground provided in the statute. “In a motion for a new trial it is sufficient to set forth the grounds in the language of the statute, and where such a motion recites “erroneous rulings” as one of its grounds, appellant can have a review of any ruling made on the trial respecting the admission of evidence.” (Coal Co. v. Nicholson, 93 Kan. 638, syl. ¶ 2, 145 Pac. 571.) The failure to raise the question below is unfortunate, for the court is satisfied there was prejudicial error in the admission of certain testimony respecting the measure of damages. This, however, furnishes some reason for what might under ordinary curcumstances be regarded as a rather technical consideration of the other errors assigned. We find nothing to indicate that the verdict was given under the influence of passion or prejudice. The court, over the objections of plaintiff, permitted the defendant to prove by a number of witnesses that the destruction of the shade trees caused no damage or injury to the real estate. These witnesses were permitted to testify that in their opinion the land was just as valuable for farming purposes without as with the shade trees, and one or two of defendant’s witnesses thought the destruction of the trees benefited the land and made it even more valuable than before. The court having admitted the incompetent evidence, it was the duty of the jury to consider it; and the fact that they found for the defendant indicates that they did so because of this evidence, rather than that they were influenced by prejudice or passion. There remains only the first ground stated in the motion— that the verdict is contrary to the evidence. The plaintiff’s testimony showed that the shade trees were valuable. A few of them were oak, and others elm. The plaintiff testified that he had planted them when he first acquired title to the land in the late “seventies” and early “eighties.” Some of the witnesses for defendant admitted that the trees had a value of at least $5 each, and the testimony of the plaintiff tended to show that some of them were worth as much as $20 each. It can be said, therefore, that there was no dispute in the evidence that the trees possessed a value as shade trees. The testimony of the defendant himself shows that he destroyed the trees purposely and maliciously. It is true, on the trial defendant made some effort to show that a few of the trees destroyed stood on the line between the two farms, that the fence was not the true line, and therefore he owned a portion of these particular trees and had the right to burn them; but this was clearly an afterthought, and if his contention respecting the line were true, and if it were conceded that because he owned a portion of one or two of the trees he could destroy them, it furnishes no defense to his act in burning the others. Besides, his own testimony is an admission that he burned the trees purposely and maliciously because he became angry at the plaintiff for claiming that he was farming land that did not belong to him. On cross-examination he testified as follows: “Q. You set fire to the tree? A. Yes, I did. “Q. What did you do that for? You intended to burn the tree? A. Mr. Collins write for me — -he wanted to rent my — he said I farmed twenty feet of the public highway; that is where the trouble came there.” While it is not the province of this court to weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict. (Glenn v. Railroad Co., 94 Kan. 83, 145 Pac. 865.) In this case the verdict can not, in our opinion, be sustained by the fact that there was evidence from which the jury might have found that some of the trees destroyed were on the division line and therefore the defendant owned an interest in some of them. Because of his own admissions, the verdict should have been set aside. As a new trial must be ordered, it is proper to say that the objections to evidence showing the value of plaintiff’s land immediately before and after the trees were destroyed should have been sustained. The plaintiff seeks to recover as damages treble the value of the trees as appurtenant to the land under the provisions of the statute. (Gen. Stat. 1909, § 9692.) In Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, it was held that where trees are destroyed, and they had a distinct value susceptible of distinct measurement, the value of the trees or things destroyed is the best measure and the most satisfactory method of determining the value of the loss. This doctrine was reaffirmed in Barker v. Railway Co., 94 Kan. 61, 145 Pac. 829, where it was said in the opinion : “It is not for the wrongdoer who causes an injury to decide whether an owner should have used his land for a particular purpose nor the use to which it can most profitably be employed. He is liable to pay for the loss of the property appurtenant to real estate which is actually destroyed and which has a value independent of the land, such as buildings and trees, and the evidence indicates that there was no difficulty in determining the value of the trees destroyed and the loss sustained.” (p. 66.) In the opinion in the Lycan case, supra, Mr. Justice Allen, speaking for the court, after recognizing that the best measure of the damage is the value of the thing destroyed as an appurtenant to, or part of the realty, used this language: “If for any reason the injury to the realty should be in fact less than the value of the thing destroyed, the plaintiff’s recovery would be limited to the actual diminution in value of the realty.” Which, he adds, “might be shown, either on cross-examination of the plaintiff’s witnesses or as a matter of defense.” (Railway Co. v. Lycan, 57 Kan. 635, 642, 47 Pac. 526.) The language just quoted from the opinion was not necessary to the decision of that case. It was obiter. Applied to a certain class of cases where the plaintiff sues to recover the damages to the land itself, it may and doubtless would apply; but where, as in this case, the plaintiff has elected, as he undoubtedly may, to recover for the value of the specific thing destroyed and has offered no proof tending to show that he seeks to recover damages to the realty alone; and, on the other hand, has offered evidence to show the distinct value of the thing destroyed, it would be absurd to say that the wrongdoer, who has committed a willful act in destroying shade trees or trees in an orchard, may escape all liability for his wrongdoing by proof that the land would sell for as much or more for farming purposes without the trees as with them. Is it conceivable that because there are residence lots in some places upon which there are more shade trees growing than ninety-nine persons in a hundred would care to have if they owned the premises, that fact, if conceded, would justify another in committing a trespass and cutting down some of the trees? A farmer leaves a magnificent elm or oak standing in a field. Its shade and roots injure a quarter of an acre or more of the soil for farming purposes. By uprooting the tree the owner may add to the strictly commercial value of the field for purposes of raising corn or wheat. But when the field becomes a meadow or pasture the tree has a practical value; it furnishes shade for cattle, and aside from its utility it may have to the owner of the soil a value difficult to estimate in dollars and cents. It may be a tree which “perhaps has been brought to its present state by years of patient care and which may be a source of comfort and gratification to an entire coxiimunity” and especially to its owner. (Paola v. Wentz, 79 Kan. 148, 158, 98 Pac. 775.) In the case just cited the court affirmed a judgment in favor of an abutting owner enjoining a city from destroying shade trees. In the opinion it was said: “The interest of an abutting owner in a shade tree growing in the street is as sacred as any other property right. Sentiment and utility combine to give it value.” (p. 153.) (To the same effect see Remington v. Walthall, 82 Kan. 234, 108 Pac. 112.) The correct rules for the measurement of damages to trees as trees is recognized in Barker v. Railway Co., 94 Kan. 61, 145 Pac. 829, holding that where fruit trees which have a distinct value as part of the land are destroyed by the negligent act of another, and their value and the damages can be definitely measured and the court applies that rule, the defendant can not complain that the court failed to apply the rule as to the difference in the value of the land before and after the destruction. In that case, too, the court expressly held that the owner of the trees may recover their value as damages without regard to whether the land could have been used more profitably without them. “The owner is entitled to plant an orchard on his land whether or not it is the most profitable use to which it can be applied, and if the fruit trees are destroyed he is entitled to claim damages from the wrongdoer for being deprived of such use and of the value of the trees.” (Barker v. Railway Co., supra, syl. ¶ 2.) The before and after value of the land upon which a trespass has been committed is sometimes a proper measure of the damages sustained. In other cases, where the thing destroyed is fruit or shade trees, the plaintiff in an action under the statute has the right to elect to sue for three times their value as trees, and the wrongdoer can not defeat his right to recover by showing that the land was of the same or greater value after the destruction of the trees. We conclude that the evidence as to the value of the land before and after the destruction of the trees should not have been admitted. The judgment, however, can not be reversed on that ground, because it is raised for the first time in this court. For the reason that the judgment is manifestly contrary to the evidence it will be reversed and a new trial ordered.	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The opinion of the court was delivered by Abbott, J.: The issue in this case is whether the trial court erred in dismissing the aggravated escape from custody charges under K.S.A. 21-3810(a) because the respondents were not being held “upon a charge or conviction of felony” when they escaped from custody. The respondents were being held in the juvenile detention facility in Sedgwick County. Some of the respondents had been adjudicated as juvenile offenders and some were being held pending juvenile adjudication hearings. The juvenile proceedings arose out of acts committed by the respondents which would have constituted felonies had the respondents been adults. When the respondents were recaptured after their escape from custody, they were charged with aggravated escape from custody pursuant to K.S.A. 21-3810(a). At that time, K.S.A. 21-3810(a) provided in pertinent part: “Aggravated escape from custody is “(a) Escaping while held in lawful custody upon a charge or conviction of felony. . . .” The trial court found that the respondents could not be convicted of aggravated escape under this statute because they were not being held “upon a charge or conviction of [a] felony” at the time of their escape. Instead, they were being held upon a juvenile charge or adjudication at the time of their escape. The State takes issue with the trial court’s ruling. Statutoiy interpretation is a question of law. This court’s review of a question of law is unlimited. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Criminal statutes are to be construed strictly against the State. State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). This court may not give a different meaning to a word in a criminal statute than the meaning that the word usually possesses. State v. Frazier, 248 Kan. 963, 971, 811 P.2d 1240 (1991). In support of its argument, the State cites to State v. Busse, 252 Kan. 695, 847 P.2d 1304 (1993). In Busse, the adult defendant was charged with aiding a felon in violation of K.S.A. 21-3812(a). This statute states: “(a) Aiding a felon is knowingly harboring, concealing or aiding any person who has committed a felony under the laws of this state or another state or the United States with intent that such person shall avoid or escape from arrest, trial, conviction or punishment for such felony.” (Emphasis added.) The trial court dismissed the charge, finding that the defendant had not aided a person who had committed a felony but rather the defendant had aided a juvenile offender. The State appealed, and this court reversed. In Busse, this court stated: “We do not believe that the legislature intended to exclude adults aiding juveniles who commit felonious acts from the provisions of K.S.A. 21-3812(a) [aiding a felon]. The very language in K.S.A. 21-3812(a) supports this result. The statute prohibits aiding any person who has committed a felony. The felonious conduct of the one aided, not the status of the one aided, triggers the applicability of K.S.A. 21-3812(a). ‘We acknowledge that the definition of ‘felony’ in K.S.A. 21-3105 does not expressly include juvenile offenses. The defendant relies on this definition to support his claim that if the legislature had intended K.S.A. 21-3812(a) to prohibit aiding one who has committed a juvenile offense, it could have expressly so provided. We agree that the legislature could have been more explicit, but we disagree that in the absence of that specificity, the statute does not proscribe the defendant’s aid to the juvenile. ... “ . . . The juvenile offenders code . . . was enacted for the benefit of the juvenile. This case charges a separate crime committed by an adult. It would serve no useful purpose to allow the status granted to a juvenile to inure to the benefit of an adult wbo aided a juvenile who committed a felonious act. “ . . . We hasten to add that interpreting K.S.A. 21-3812(a) to include aiding juvenile offenders in no way undermines the benefits and protection that the juvenile offenders code extends to the young offender.” 252 Kan. at 697-99. (Emphasis added.) The State also points to the 1996 amendment to K.S.A. 21-3810, which was enacted after the trial court dismissed the aggravated escape from custody charges against these respondents. The statute now reads in pertinent part: “Aggravated escape from custody is: “(a) Escaping while held in lawful custody upon a charge or conviction of a felony or upon a charge or adjudication as a juvenile offender as defined in K S.A. 38-1602, and amendments thereto, where the act, if committed by an adult, would constitute a felony . . . .” K.S.A. 1996 Supp. 21-3810(a). (Emphasis added.) The State acknowledges that, ordinarily, courts presume the legislature intended to change the effect óf a statute when the legislature changes the language of a statute. Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990) (“When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.”) However, according to the State, the legislature’s amendment of K.S.A. 21-3810 was simply an intent to clarify this issue on appeal and was not an intent to change the law. Thus, the State asserts that K.S.A. 21-3810(a), as it existed when the respondents escaped, was applicable to escapees who were being held for conduct which, if committed by an adult, would have constituted a felony. Since the respondents were in custody as juvenile offenders for committing felonious acts when they escaped, the State asserts that this is sufficient to bring the respondents’ conduct within the scope of the aggravated escape from custody statute. We disagree. K.S.A. 21-3810(a) specifically and clearly describes a person who may be convicted under the statute as one who escaped while being held in custody upon a charge or conviction of a felony. A felony is defined as a “crime.” K.S.A. 21-3105(1). Under the Juvenile Offenders Code, a juvenile adjudication cannot carry any criminal implications or qualify as a crime. See K.S.A. 38-1601. See also State v. Muhammad, 237 Kan. 850, 854, 703 P.2d 835 (1985) (“[A] juvenile proceeding has long been considered a civil proceeding of a protective nature totally divorced from any criminal implications. . . . ‘The whole design of the juvenile law is to avoid charging the juvenile offender with crime.’ ”); State v. Ward, 20 Kan. App. 2d 238, 244, 886 P.2d 890 (1994), rev. denied 257 Kan. 1096 (1995). (“The plain language of the Juvenile Offenders Code provides that adjudications under the Code are not criminal convictions. Where the language of statutes is plain and unambiguous, this court is required to give effect to that language without considering what the law should or should not be.”) This court recently reiterated the rule that a juvenile adjudication does not constitute a criminal conviction in State v. Lanning, 260 Kan. 815, 925 P.2d 1145 (1996). Further, the legislature has previously demonstrated its awareness of the distinction between criminal convictions and juvenile adjudications. The legislature knew how to include escapes from custody for juvenile adjudications within K.S.A. 21-3810(a) if it desired to do so. For instance, in K.S.A. 21-4204, the criminal possession of a firearm statute, the legislature specifically proscribed possession of a firearm by both a person convicted of one of the enumerated felonies within a certain time period and a person who “was adjudicated a juvenile offender because of the commission of an act which if done by an adult would constitute the commission” of a felony. K.S.A. 21-4204(a)(2) and (4). Also, the legislature made specific reference to juvenile adjudications in several sentencing guidelines statutes, including K.S.A. 21-4703(c), K.S.A. 21-4606b, K.S.A. 21-4709, and K.S.A. 21-4710. In State v. Ward, 20 Kan. App. 2d at 243-44, the Court of Appeals found that the Habitual Sex Offender Registration Act, K.S.A. 22-4901 et seq., only allows convictions for sex offenses, not juvenile adjudications for sex offenses, to be used in the determination of whether one is a habitual sex offender. In so holding, the court pointed out that the legislature is aware that criminal convictions and juvenile adjudications are not the same thing. For instance, the legislature specifically included juvenile adjudications as a part of an offender s criminal history in certain instances under K.S.A. 21-4710. The court found that this specific reference to juvenile adjudications was an indication that the legislature knew juvenile adjudications could not be treated as criminal convictions unless it specifically provided for this result. Thus, according to the Ward court, if the legislature had intended to include juvenile adjudications in the determination of whether one is a habitual sex offender, the legislature could have made specific reference to juvenile adjudications in the statute. Since it did not, the Ward court concluded that the legislature must not have intended for juvenile adjudications to be subject to the Habitual Sex Offender Registration Act. 20 Kan. App. 2d at 244. Moreover, in 1996, the legislature amended K.S.A. 21-3810 for the third time in 5 years and included escapes from custody while under juvenile adjudication of felonious acts. This amendment also indicates that the State’s position is incorrect. “When the legislature revises an existing law, it is presumed that .the legislature intended to change the law as it existed prior to the amendment.” Hughes v. Inland Container Corp., 247 Kan. at 414. The juveniles escaped before the 1996 amendment was enacted; therefore, the amendment does not apply to them. If the amendment changed the law from how it existed prior to the amendment, then at the time of the respondents’ escapes, it is presumed that K.S.A. 21-3810(a) did not apply to juvenile offender escapees. Thus, we conclude that if the legislature had intended to include juveniles who committed felonious acts within the scope of the aggravated escape statute, it clearly knew how to do so and could have done so. The adoption of the 1996 amendment to the aggravated escape statute demonstrates a legislative recognition that the aggravated escape statute, as it existed at the time of the escapes herein, did not apply to an escape by a juvenile who was in custody pursuant to a juvenile adjudication. In summary, when the respondents escaped, they were being held in custody for juvenile adjudications or pending juvenile adjudications for felonious acts; they were not being held in custody for a charge or conviction of a felony. Thus, K.S.A. 21-3810(a) did not apply to the respondents’ escapes, and the trial court properly dismissed the aggravated escape charges filed against the respondents under 21-3810(a) for these escapes. Affirmed.	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Per Curiam: This original proceeding in discipline was filed by the office of the Disciplinary Administrator against Leo N. Johnson, of Council Grove, an attorney admitted to the practice of law in the state of Kansas. The formal complaint filed against respondent alleges violations of MRPC 1.1 (1996 Kan. Ct. R. Annot. 257); 1.3 (1996 Kan. Ct. R. Annot. 264); 1.4 (1996 Kan. Ct. R. Annot. 270); and 8.4 (1996 Kan. Ct. R. Annot. 350); and Supreme Court Rule 207 (1996 Kan. Ct. R. Annot. 205). A hearing before a panel of the Kansas Board for Discipline of Attorneys was held on September 11,1996. Respondent appeared pro se and by counsel, Gene E. Schroer. We note that respondent has been before this court on numerous occasions. On March 8,1979, respondent was indefinitely suspended from the practice of law. In re Johnson, 225 Kan. 466, 592 P.2d 102 (1979). On December 18, 1979, this court reinstated respondent to the practice of law. However, on March 24, 1980, respondent was ordered to appear before this court on an order to show cause why he should not be suspended or disbarred from the further practice of law. One of the provisions of the December 18, 1979, reinstatement was that respondent “ ‘totally abstain from the use of intoxicating liquor and beverages, including 3.2 per cent beer.’ ” In re Johnson, 227 Kan. 478, 608 P.2d 1012 (1980). Respondent violated that provision and was again indefinitely suspended from the practice of law. 227 Kan. at 479. On March 20, 1989, respondent was again reinstated to the practice of law, providing that he “totally abstain from the use of any and all intoxicating liquor and beverages, including 3.2 percent beer.” In re Johnson, 244 Kan. 591, 592, 770 P.2d 842 (1989). On January 17, 1992, respondent was disciplined by public censure for his “failure to cooperate in the investigation herein and in light of his ‘prior violations of the ethical rules/ ” In re Johnson, 250 Kan. 286, 822 P.2d 72 (1992). On June 2, 1995, respondent was placed on probation for 2 years. In re Johnson, 257 Kan. 946, 895 P.2d 1256 (1995). The present complaint against respondent involved the sum of $500, which Kym Roberts, the complainant, paid to respondent as the fee for respondent to accomplish the adoption by George Roberts of Kym Roberts’ daughter. The panel found that the following facts were established by clear and convincing evidence: “2. Respondent was retained July 10,1993, by Complainant, Kym Roberts and her husband George, to file papers accomplishing George’s adoption of Kym’s daughter. Mr. & Mrs. Roberts paid a $500 retainer and clearly alerted Respondent to the need to finalize the adoption quickly. The daughter’s natural father was violent and they sought to cut off his parental rights since he had no contact with and gave no support to the child. “3. Mrs. Kym Roberts testified that Respondent promised to comply with then-wishes. Nonetheless, it was May 1994 before Respondent’s secretary notified Mrs. Roberts that the adoption hearing was set for June 21, 1994. She and her family returned to Council Grove, Kansas but there was no hearing on the docket. Respondent took no action despite contact from and to Complainant in January 1995 and February 1995. Finally in September, 1995, Mrs. Roberts filed her complaint with the Kansas Disciplinary Administrator’s office. “4. Although contacted by the Disciplinary Administrator’s office and its investigator in September, October and November, 1995, Mr. Johnson first called the investigator November 15, 1995. Still Respondent never filed a written Answer to the complaint and the Formal Complaint was set for hearing. It alleges violations of KRPC 1.1,1.3,1.4, 8.4, and Supreme Court Rule 207. “5. Respondent testified at the hearing that he just put off the adoption filing as he does everything else. He only contacted Mr. Schroer about representing him in the disciplinary hearing one day before the hearing date. “6. Mrs. Roberts finally achieved the adoption by hiring a Michigan attorney for $800. The process took that attorney about 8 weeks. “7. On cross examination from Mr. Diehl, Respondent explained that he was an alcoholic who ceased drinking in 1984. He plans to see a psychiatrist about his avoidance problems which others have suggested is a symptom of depression. He acknowledged that he has a habit of storing unopened letters from the investigator and others.” The panel made the following conclusions of law: “Respondent’s conduct violates the Kansas Rules of Professional Conduct Sections 1.1,1.3,1.4, 8.4 and Supreme Court Rule 207. The Panel finds by clear and convincing evidence that Respondent violated KRPC 1.1, 1.3, 1.4 and 8.4 by generally neglecting a case he willingly accepted. He failed to communicate with his client, he told her pleadings had been filed and hearing set when no such work had been accomplished. He carried on the appearance of representing her when in fact he did little, if anything to accomplish the desired adoption. “Furthermore, Respondent failed to cooperate or even communicate with the Disciplinary Administrator’s office in its investigation of the complaint against Respondent. This inaction constitutes a violation of Supreme Court Rule 207.” The panel made the following recommendation: “In malting its recommendations for discipline, the Panel has reviewed the ABA Standards for Imposing Lawyer Sanctions. The factors to be considered include the following: 1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system or to the profession; 2) whether the lawyer acted intentionally, knowingly or negligently; 3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and 4) the existence of aggravating or mitigating factors. “The evidence shows that Respondent violated a duty to his clients, Mr. & Mrs. Roberts, by neglecting their requested adoption. It cost them time and money and emotional strain because of the delay. They made trips and calls to Respondent’s office, but had to hire an attorney in Michigan to accomplish the adoption. Even a letter of complaint to the Disciplinary Administrator did not motivate Respondent to represent them as he was duty bound. Mrs. Roberts also testified about the problems she had with schools and financial assistance and medical insurance during the time she was trying to get her daughter adopted by her husband. “We must then turn to the ABA Standards on Aggravation and Mitigation to determine whether any factors present either increase or reduce the nature and extent of discipline to be imposed.” As to aggravating factors, the panel found: “a. Prior disciplinary offenses. Respondent has a disciplinary record and has been suspended from the practice of law. . . . “c. Pattern of misconduct. Respondent has a disconcerting habit of not opening letters that might contain bad news. “e. Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency. Respondent failed to file a written response to the Disciplinary Administrator’s investigation or Formal Complaint and refuses to stipulate to the violations. “g. Refusal to acknowledge wrongful nature of conduct. Respondent refuses to stipulate to the violations. “i. Substantial experience in the practice of law. Respondent is a 1962 graduate and admittee to practice and has sufficient experience to have been attentive to this adoption matter. “j. Indifference to making restitution. Respondent has not yet returned complainant’s $500 fee.” The panel found no mitigating factors but did acknowledge that “[i]t is unclear whether Respondent suffers from depression.” The panel concluded its report as follows: “After reviewing all of these factors, the Panel recommends that Respondent be suspended from the practice of law; however he should be placed on probation to be concurrent with and on the same terms as his present probation ordered in his prior disciplinary case, In re Johnson, 257 Kan. 946 (1995). Furthermore the Panel recommends that Respondent be ordered to make restitution by returning the $500 fee to Mrs. Roberts as well as reimbursing her travel expenses for coming to this September 11, 1996 hearing in Topeka, Kansas. Mr. Diehl is directed to obtain the reasonable expenses information from Complainant. In addition, Respondent is not in compliance with the Supreme Court’s order [in] In re Johnson, 257 Kan. 946 (1995) . . . wherein Respondent is required to submit a plan to the Disciplinary Administrator’s office for obtaining counseling and/or assistance to ensure no repeat of his unethical behavior. In fact his behavior leading to and including this proceeding is almost an exact repeat of his previous conduct that violated the KRPC.” The respondent did not file exceptions to the report of the hearing panel. He does not contend that his actions are not violations of the Model Rules of Professional Conduct. He argues that his conduct was due to depression. Respondent submitted a letter from Dr. Ed Levy indicating that respondent has been a patient of Dr. Levy’s since September 18,1996. The purpose of the letter was to request a continuance of this matter for several months to allow a full diagnosis and report. The doctor also indicated that respondent was “depressed at a mild to moderate level,” and he started respondent on Prozac with good effect. At oral argument before this court, counsel for respondent stated that he had been contacted by respondent only days before the hearing before the panel. Counsel indicated respondent suffers from depression and has a history of alcohol dependence. Counsel requested an extension of time to formulate and submit a specific plan for respondent to receive treatment and continue to practice law. We note that respondent failed to present any evidence to the panel that he suffers from depression, nor did he submit a specific plan for treatment and supervision of his practice. Although this court considers mitigáting factors in assessing discipline, such matters should be presented at the hearing before the panel and not for the first time at oral argument before this court. However, the question is not whether respondent may be suffering from depression but, even if he is, whether he should be allowed to continue to practice law. A majority of this court is of the opinion that he should not. Respondent’s conduct constitutes a serious violation of the Model Rules of Professional Conduct. As noted by the panel, his prior record of disciplinary violations is not only serious, but also his misconduct in the present case is “almost an exact repeat” of that for which he is presently on probation. Nor is he an inexperienced lawyer with an unblemished record. We. accept the panel’s findings and conclusions, but a majority of this court does not agree with the panel’s recommended discipline. The panel’s recommendation might be acceptable to this court absent respondent’s disciplinary record. Less than 2 years ago, respondent assured this court that he would never again be before this court for violation of the Model Rules of Professional Conduct. He convinced this court that he should have another chance to practice law. A majority of this court is no longer convinced that he should be allowed to do so. It Is Therefore Ordered that Leo N. Johnson be and he is hereby indefinitely suspended from the practice of law in Kansas. It Is Further Ordered that respondent comply with the provisions of Supreme Court Rule 218 (1996 Kan. Ct. R. Annot. 226), that he pay die costs of this proceeding, and that this opinion be published in the Kansas Reports.	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The opinion of the court was delivered by McFarland, C.J.: Gregory E. Ware pled guilty to felony murder and aggravated robbery, for which he received consecutive sentences of life and 49 months, respectively. His sole issue on appeal is a claim that the district court abused its discretion in running the sentences consecutively. The facts relative to the crimes may be summarized as follows: On October 12, 1994, defendant paid $165 in rent to his 80-year-old landlady, Ms. Jamie Lewis. The following morning, he returned to Ms. Lewis’ home to rob her. He strangled her, stole the $165 from her purse, and spent the money on cocaine. Later on the same day, defendant turned himself in to law enforcement officers, apprising the officers of the murder, which had not been discovered. On January 22, 1996, defendant pled guilty to felony murder (K.S.A. 21-3401[b]), an off-grid crime (K.S.A.. 1996 Supp. 21-4706[c]), and to aggravated robbery, a severity level 3, person felony (K.S.A. 21-3427). In exchange for his guilty plea, the State agreed that, even though it would recommend consecutive sentences, it would not oppose defendant’s request for concurrent sentences. After careful inquiry of the defendant, the district court found that the plea was entered into freely, voluntarily, and knowingly, and pronounced defendant guilty of felony murder and aggravated robbery. On February 28, 1996, defendant appeared for sentencing. No departure was requested, discussed, or granted. Life is the only sentence of imprisonment for felony murder. K.S.A. 1996 Supp. 21-4706(c). On the aggravated robbery, the 49 months term of imprisonment is mid-range (51-49-46) for a severity level 3, category I offense. K.S.A. 21-4721 provides: “(e) In any appeal, the appellate court may review a claim that: (1) A sentence that departs from the presumptive sentence resulted from partiality, prejudice, oppression or corrupt motive; (2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or (3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.” Defendant makes no claim of error on any of the grounds set forth in this statute. Rather, the sole issue raised is abuse of judicial discretion in imposing the sentences consecutively. We shall first consider the State’s contention that this court lacks jurisdiction to entertain this appeal. As the State notes, this precise jurisdictional question has been previously decided by the Court of Appeals in State v. McCallum, 21 Kan. App. 2d 40, 895 P.2d 1258, rev. denied 258 Kan. 861 (1995), and in State v. Peal, 20 Kan. App. 2d 816, 893 P.2d 258, rev. denied 257 Kan. 1095 (1995), wherein the court held that the discretionary imposition of consecutive sentences is not an appealable issue. Defendant contends these two cases were wrongly decided. We disagree. . K.S.A. 22-3602(e) provides: “For crimes committed on or after July 1,1993, an appeal by the prosecution or the defendant relating to sentences imposed pursuant to a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq. and amendments thereto, shall be as provided in K.S.A. 21-4721 and amendments thereto.” The crimes herein were committed after July 1,1993, and relate to sentences imposed under the Kansas Sentencing Guidelines Act (K.S.A. 21-4701 et seq.). The appeal herein is solely from the district court’s discretionary decision to run the sentences consecutively as authorized by K.S.A. 1996 Supp. 21-4720(b). There is no cláim that the requirements and limitations relative to the imposition of consecutive sentences set forth in said statute are applicable. There is no claim that the sentences imposed herein are, or the sentencing procedure is, in any respect, illegal. Therefore, pursuant to K.S.A. 22-3602(e) if this issue before us is an appealable issue, authority therefor must be found in K.S.A. 21-4721. This statute is set forth in its entirety as follows: “(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appellate courts in accordance with rules adopted by the supreme court. “(b) Pending review of the sentence, the sentencing court or the appellate court may order the defendant confined or placed on conditional release, including bond. “(c) On appeal from a judgment or conviction entered for a felony committed on or after July 1, 1993, the appellate court shall not review: (1) Any sentence that is within the presumptive sentence for the crime; or (2) any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record. “(d) In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure: (1) Are supported by the evidence in the record; and (2) constitute substantial and compelling reasons for departure. “(e) In any appeal; the appellate court may review a claim that: (1) A sentence that departs from the presumptive sentence resulting from partiality, prejudice, oppression or corrupt motive; (2) the sentencing court erred in either including or excluding recognition of a prior conviction or juvenile adjudication for criminal history scoring purposes; or (3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes. “(f) The appellate court may reverse or affirm the sentence. If the appellate court concludes that the trial court’s factual findings are not supported by evidence in the record or do not establish substantial and compelling reasons for a departure, it shall remand the case to the trial court for resentencing. “(g) The appellate court shall issue a written opinion whenever the judgment of the sentencing cotut is reversed. The court may issue a written opinion in any other case when it is believed that a written opinion will provide guidance to sentencing judges and others in implementing the sentencing guidelines adopted by the Kansas sentencing commission. The appellate courts may provide by rule for summary disposition of cases arising under this section when no substantial question is presented by the appeal. “(h) A review under summary disposition shall be made solely upon the record that was before the sentencing court. Written briefs shall not be required unless ordered by the appellate court and the review and decision shall be made in an expedited manner according to rules adopted by the supreme court. “(i) The sentencing court shall retain authority irrespective of any notice of appeal for 90 days after entry of judgment of conviction to modify its judgment and sentence to correct any arithmetic or clerical errors.” As previously noted, there is no claim that (e) applies, that is, that the sentence resulted from partiality, prejudice, oppression, or corrupt motive, or that there was any error in computing defendant’s criminal history scoring or the crime severity level. The sentences herein are not claimed to be violative of the presumptive sentence for the particular crime. Thus, subsection (c)(1) would bar the appeal unless the running of the sentences consecutively constitutes the imposition of departure sentences. In determining this identical claim in State v. Peal, 20 Kan. App. 2d at 822-23, the Court of Appeals held: “Whether the decision to impose consecutive sentences can be appealed depends on whether that decision was the result of one of the grounds specified in K.S.A. 1993 Supp. 21-4721. Defendant does not allege that the imposition of consecutive sentences was the result of partiality, prejudice, oppression, or corrupt motive. Nor does he maintain there was an error in the criminal history score or the seventy level of the current crimes of conviction. The grounds for appeal set forth in K.S.A. 1993 Supp. 21-4721(e) are not applicable in this case. Therefore, defendant can maintain this appeal only if imposing consecutive sentences constitutes a ‘departure sentence.’ K.S.A. 1993 Supp. 21-4721(a). ‘‘A departure is defined in K.S.A. 1993 Supp. 21-4703(g) as ‘a sentence which is inconsistent with the presumptive sentence for an offender.’ There are two types of departure under the KSGA: a dispositional departure (see K.S.A. 1993 Supp. 21-4703[h]) and a durational departure (see K.S.A. 1993 Supp. 21-4703[j]). The term ‘presumptive sentence,’ as that term is defined in K.S.A. 1993 Supp. 21-4703(r), contemplates a sentence which complies with the dispositional and durational mandates of the appropriate grid block. A grid block provides no mandate regarding whether a sentence should be run concurrently or consecutively. Therefore, a consecutive sentence is not in and of itself inconsistent with the presumptive sentence and is not a departure. Only if the sentence imposed is inconsistent with the duration and disposition of the appropriate grid block can there be a departure. See Kansas Sentencing Guidelines Act Implementation Manual, p. 4-17 (1992) (‘In contrast to departure sentences, consecutive nondeparture sentences are not appealable.’ [Emphasis in original.]). “In this case, the sentence imposed is not inconsistent with the presumptive sentence and, therefore, is not a departure sentence as that term is used in K.S.A. 1993 Supp. 21-4721(a). Thus, defendant’s allegation that the district court abused its discretion by imposing consecutive sentences is not one of the grounds specified in K.S.A. 1993 Supp. 21-4721 for appealing a sentence. Simply put, the issue raised by defendant is not an appealable issue. “In State v. Starks, 20 Kan. App. 2d 179, 183, 885 P.2d 387 (1994), this court wrote that the provisions of K.S.A. 1993 Supp. 21-4721(c)(1) were ‘adopted by the legislature to foreclose the type of appeals which had previously been lodged under the former statutory scheme alleging that the sentencing court abused its discretion.’ The holding in this case is consistent with the legislature’s intent to foreclose such appeals.” We agree therewith. The imposition of consecutive sentences is not inconsistent with presumptive sentences and does not constitute the imposition of a departure sentence. The issue raised by the defendant is not an appealable issue. Accordingly, the appeal must be dismissed for lack of jurisdiction. Appeal dismissed.	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The opinion of the court was delivered by MASON, J.: Wert Bartlett caused the arrest of Joe Tucker upon the charge of setting fire to his barn. A preliminary examination was held before a justice of the peace, and Tucker was discharged. He brought an action against Bartlett for malicious prosecution, and recovered a judgment, from which this appeal has been taken. (1) The defendant maintains that there was no evidence either of the want of probable cause or of malice. The weight of authority supports the rule that the discharge of an accused by an examining magistrate is prima facie evidence of the want of probable cause for his arrest. (Note, 64 L. R. A. 474, 481; Note, 3 Ann. Cas. 112.) This court has held that a finding by the magistrate that a complaint was made maliciously and without probable cause is not admissible in an action for malicious prosecution. (Farwell v. Laird, 58 Kan. 402, 49 Pac. 518.) But that is a different question, although doubtless closely related. The case cited is based upon the principle that judgments are not admissible against strangers as evidence of the facts on which they rest. That rule, however, is subject to some exceptions. (Trust Co. v. Railroad Co., 93 Kan. 340, 348, 144 Pac. 210.) The fact that upon a preliminary examination an accused is held to answer the charge against him as accepted as prima facie evidence of the existence of probable cause for his prosecution. (Ross v. Hixon, 46 Kan. 550, 26 Pac. 955.) We think in view of the general practice the discharge by the justice of the peace should be regarded as tending to show the want of probable cause, and, therefore, as being sufficient to place upon the defendant the burden of showing its existence. (2) The defendant relied largely upon evidence that two bloodhounds were put upon a trail at the bam, and followed it to the plaintiff’s home. Just what the dogs did, and what inference could reasonably have been drawn from their conduct, were matters of proof, and it can not be said that the facts in that regard were conclusively established. Moreover the defendant was shown to have had knowledge that the plaintiff claimed to have been at church at the time of the fire, and there was room for an inference that he had not made reasonable inquiry to learn the truth in that regard prior to causing the arrest. Testimony was given of statements made by the defendant that he would hate to send an innocent man to the penitentiary, and that he was surprised at the action of the dogs, as he had not previously suspected the plaintiff. This evidence tended, to show the absence of malice, but can not be said to be necessarily controlling. The defendant was advised in his course by competent attorneys, but the jury specifically found that he had not made a full disclosure to them of the known facts. We conclude that the case was rightly submitted to the jury. (3) A special finding was also made that the defendant, at the time he instituted the prosecution against the plaintiff, believed that he had probable cause for so doing. His belief on this subject, however, is not the determining question, for he may have had an entirely mistaken idea as to what constituted probable cause. “It is not material, in an action against him [a defendant] for malicious prosecution, whether he believed that probable cause existed in a legal sense, unless as bearing upon the question of malice.” (Michael v. Matson, 81 Kan. 360, syl. ¶ 2, 105 Pac. 537.) The vital question was whether the defendant upon reasonable grounds believed that the plaintiff had set fire to his bam. Proof that a person charged with assault and battery had acted in self-defense would require a decision in his favor, but a finding that he had believed he was acting in self-defense would not have that effect. (4) Complaint is made of this language in an instruction: “Whatever is done purposely, if it be at the same time wrongful, and is done without just cause, is maliciously done.” This is substantially the same as was said in an instruction approved in Leicester v. Hoadley, 66 Kan. 172, 71 Pac. 318: “A malicious act is ‘an unlawful act done intentionally, without just cause or excuse.’ ” (p. 174.) The sentence objected to was preceded by this: “Malice in the legal sense consists in the wilful doing of an unlawful act, without a just cause or excuse for the doing it.” A knowledge that the act in question is wrongful or illegal is sometimes included as one of the elements in a definition of malice, as the word is used in this connection. (26 Cyc. 49.) But if one intentionally does that which the law condemns, the circumstance that he is not aware of such condemnation does not affect the legal quality of the act. The definition given by the trial court is substantially that approved by the authorities. (Note, 21 Ann. Cas. 756, 758.) Therefore no error was committed in this regard. (5) The defendant maintains that the judgment should be reversed because the jury were told that “probable cause is such reasonable grounds as will cause in the mind of an ordinarily careful and prudent person an honest belief in the criminal guilt of another.” Standing by itself such an instruction has been held to be erroneous because it treats the question of what constitutes probable cause as one of fact in stead of as one of law. (Michael v. Matson, 81 Kan. 360, 105 Pac. 537.) But, as indicated in the case cited, the objection may be removed by “a clear and accurate statement of what specific facts under the circumstances of the particular case would, if found to exist, be sufficient under the law” (Syl. ¶ 1) to constitute probable cause. Such a statement was given in the present case, so that the instruction is not open to the objection urged. The judgment is affirmed.	[ -80, -22, -20, -97, 11, 96, 58, -100, 83, -95, 115, -13, 109, -61, 0, 99, -14, 125, 85, 105, 70, -74, 23, 67, -14, -45, 91, 85, -75, -49, -12, 92, 73, 52, -126, 85, 38, -86, -59, 80, -114, -123, -88, 105, -45, -40, 32, 57, 54, 11, 49, -97, -13, 42, 24, -61, 73, 40, 74, -83, -16, -15, -104, 93, 77, 6, -93, 38, -84, -123, -16, 60, 17, 49, 1, -8, 115, -112, -128, -12, 109, 9, -116, 98, 98, 17, 29, -23, 33, -119, 47, 62, -113, -89, 24, 72, -55, 33, -98, -97, 117, 48, 38, 96, -25, 92, 125, 108, -111, -57, -106, -75, -123, 60, 58, 35, -49, -123, 0, 113, -49, -22, 92, 37, 81, -33, -100, -99 ]
The opinion of the court was delivered by Mason, J.: Goldie Angelí, nineteen years of age, was killed in a collision between a Rock Island passenger train and a carriage in which she was riding. Her parents recovered a judgment against the railway company and its engineer and fireman, and they appeal. The accident occurred at.about half past ten o’clock on a moonlight night, in Plains, a city of .the third class, having about 400 inhabitants, at a much traveled crossing — the only one for a distance of half a mile in either direction. The railroad runs approximately east and west. The train came from the east, the carriage from the north. A view of the track to the east from a vehicle approaching from the north was cut off, until the observer should be about fifteen feet from the track, by the station and other buildings, by some box cars standing upon the house track fifty feet to the north, and by a signboard 60 to 70 feet north of that. An ordinance prohibited trains from running faster than ten miles an hour within the corporate limits. The mayor had written to the company to the effect that a speed of twenty miles an hour would not be objected to if the street were kept free from standing cars for its entire width. The jury found that the train was making forty miles an hour at the time of the accident. There was evidence that no bell was rung and that a whistle was blown while the train was more than a mile from the station, but not later. (1) The jury based its verdict on three forms of negligence —failing to give a proper warning, violating the speed "limit, and blocking the view of an approaching train. The defendants maintain that neither the failure to give a proper warning nor the speed of the train was a proximate cause of the accident, and that the obstruction of the view of the track was not negligent. On the first proposition the substance of the argument seems to be that if the occupants of the carriage had been exercising any reasonable degree of care they would have heard the whistle or the noise of the train, and that as they were paying no attention to the matter whatever they would not have heard the whistle if it had been blown again or the bell if it had been rung. Whether that was the case was a question of fact which the jury must be regarded as having determined against the defendant. With regard to the violation of the ordinance, it is argued that as the driver testified that he did not see the train before the team was upon the main line and the front wheels of the carriage were going upon the crossing the accident would have occurred if the rate had been but twenty miles an hour, or even ten. There was also evidence, however, that the engine struck the rear wheels of the carriage, so there is room for the inference that if the speed had been ten miles an hour, or even twenty, the driver would have been able to cross in safety. The effect of the mayor’s statement that under certain conditions the violation of the ordinance would not be objected to is therefore not important, but as such a regulation has the force of law (Denton v. Railway Co., 90 Kan. 51, 55, 133 Pac. 558) the suggestion that it could be nullified or modified otherwise than by repeal or amendment lacks plausibility (see 33 Cyc. 977; Garber v. St. Louis Southwestern Ry. Co. of Texas, [Tex. Civ. App. 1909] 118 S. W. 857). The obstruction of view which the plaintiff relied on as constituting negligence on the part of the railway-company was that due to the placing of the freight cars on the house track. The company maintains that although the cars were so placed as to have that effect, no showing was made that such arrangement was unnecessary or improper. The fact that the view was so far cut off by other obstructions, which presumably were necessary, warranted the conclusion that if practicable the cars should be so placed as not to restrict it still further. There was perhaps room for a finding that some other disposition could and should have been made. But this element of negligence could be eliminated without requiring a reversal. (2) The principal contention of the defendants is that the evidence conclusively shows the decedent to have been guilty of contributory negligence. She was familiar with the crossing and had often driven over it. On the night of the accident she went in the carriage, belonging to her parents, with whom she was living, accompanied by two sisters and a younger brother, from their home to attend a revival meeting. Another sister and her husband went with visiting friends in an automobile. All the family knew that they could return in any way they desired, as no plans had been made in that regard. After the services the married sister and her husband expressed a desire to go back in the carriage with the decedent and one of her sisters, and this arrangement was acquiesced in by the others. There was no conversation as to who should do the driving, but the married couple took the front seat and the husband drove. When the carriage reached the point where the street crosses the house track the team was slowed down from a trot to a walk, and was driven to the crossing without stopping and without further slowing up. Nothing was said by any of the party after reaching a point about a block north of the main track until the carriage was on the crossing. The court submitted to the j ury the question whether the decedent was negligent in failing to request the driver to stop before attempting to cross, and they specifically found that she used reasonable and ordinary care as the team approached and passed upon the track. The question was a fair one for determination by the jury. The driver testified that he was not familiar with the crossing, although he had been about Plains for two months. Whether this circumstance, if known to his sister-in-law, in view of her own greater familiarity with the surroundings, made it incumbent upon her to advise him as to the management of the team can not be said to admit of only one reasonable opinion. He had assumed the responsibility of driving, and the court can not say as a matter of law that she was bound to distrust his ability or his caution. (Denton v. Railway Co., ante, p. 498, 155 Pac. 812.) (3) The answers pleaded that the decedent had been personally negligent but did not charge that the negligence of the driver was imputable to her. After the jury had been impaneled the defendants asked leave to amend by alleging that she was chargeable with his negligence. The request was renewed at the close of the plaintiffs’ evidence. Permission to amend was in each instance refused, and the rulings are complained of. The allowance of amendments to pleadings is largely in the control of the trial court, and in view of the late hour at which the request was preferred in this instance its refusal can not he regarded as an abuse of discretion. (4) A witness for the plaintiffs was permitted to testify that the decedent had been in the habit of looking before driving over this crossing, and that when she saw a train approaching would insist on waiting until it was past. The defendants objected to each question by which this evidence was developed “as incompetent, irrelevant and immaterial; as it calls for the opinion and conclusion of the witness.” An argument is made that inasmuch as there was positive evidence of the conduct of the decedent at the time of the accident, no occasion existed for invoking any presumption in the matter. There was direct evidence that she said nothing until the collision had become inevitable, but whether she looked and listened for a train was a matter of inference, upon which her habit in that regard may have had some bearing. (Railway Co. v. Moffat, 60 Kan. 113, 55 Pac. 837.) The testimony objected to did not call for a conclusion or for expert opinion. The question of the admissibility of similar evidence has lately been discussed in a case where no decision was found to be necessary. (Fike v. Railway Co., 90 Kan. 409, 417, 133 Pac. 871.) The citations there made show a preponderance of authority in favor of accepting the evidence, and we regard that rule as the better one. Other cases are collected in a note in 14 Michigan Law Review, p. 411. (5) Complaint is made of the refusal of a number of instructions relating to contributory negligence. The jury were told, in substance, that no recovery could be had if the decedent failed in any duty incumbent on her; that it was her duty to ■look and listen for a train as the carriage approached the track; and that whether it was also her duty to insist that the driver should stop before driving upon the track was a question of fact for their decision. The defendants maintain that they were entitled to the more specific instructions which they asked. Each of these is regarded as containing some element justifying the refusal. One related to the conduct of “the occupants of the vehicle,” and was open to the interpretation that the decedent might be held responsible for the conduct of others than herself. Another said that if the deceased knew of the approach of the train the failure of the engineer to give a signal was immaterial, ignoring the contingency that, until it was too late to take any effective action herself, she might have reasonably supposed that the driver also knew of its coming and intended stopping. Another stated that the failure of the decedent to remonstrate with the driver was negligence in law, if she saw the approaching train, without referring to the time of her seeing it, thus charging her with negligence although she may have first seen it after the collision had become inevitable. Another placed upon the plaintiffs the burden of disproving contributory negligence. Two others were to the effect that if the decedent could not herself ascertain whether or not a train was coming it was her absolute duty to request the driver to stop. In view of the driver’s more advantageous position we think it can not be said as a matter of law that she had no right in that situation to depend upon his judgment. An instruction regarding imputed negligence, on the theory of a common purpose and common right of control, was properly refused because that issue had been excluded. It is contended that the matter of the obstruction caused by the freight cars should have been withdrawn from the jury because it had not been pleaded as a ground of recovery and because there was no evidence of negligent conduct in that regard. The petition alleged that the accident was due solely to the negligent conduct of the engineer and fireman in running at an excessive speed and failing to give any warning.at a time when the view was negligently and unnecessarily obstructed by the cars on the house track. Even if these allegations are so construed as to forbid a recovery on account of negligence in placing the box cars, no reversal can be had on that account, because the existence of the other two grounds relied upon was specifically found. (6) The final complaint is of the refusal of the court to allow an attorney representing the engineer and fireman to cross-examine the plaintiffs’ witnesses. A separate answer had been filed for them, signed by two attorneys, who also signed that of the railway company. When the case was called for trial these attorneys formally withdrew as counsel for the engineer and fireman, and a third attorney announced that he would alone represent them, a notation to that effect being made on the docket. During the trial this attorney, after counsel for the railway company had completed the cross-examination of witnesses for the plaintiff, undertook to cross-examine them in behalf of the other defendants. The trial court refused to allow this, saying that the railway’s attorneys had signed all of the papers and represented all three of the defendants at hearings in chambers, and were considered as still representing them, adding that they would not be permitted to withdraw during the trial at any stage of the proceedings. The fact that the same attorneys had prepared the pleadings for all the defendants did not commit them to the policy of being represented by the same counsel throughout the trial. The interests of the railway company and of the engineer and fireman were in some respects dissimilar. For instance, a finding that the negligent obstruction of view by the box cars was the sole cause of the collision would have fastened liability upon the company and exonerated these employees. The individual defendants had a right to present their side of the controversy, unembarrassed by any question of the effect upon the corporation. The cross-examination of the adverse witnesses was an essential part of their presentation. (McIntosh v. Oil Co., 89 Kan. 289, 131 Pac. 151.) Their right in that connection had not been forfeited, and its denial prevented their having the full opportunity for a hearing to which they were entitled. The error requires a new trial as to them, but does not affect the judgment against the company. The judgment is affirmed as to the railway company, but reversed with directions for a new trial as to the other defendants.	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The opinion of the court was delivered by West, J.: The plaintiff, a resident taxpayer of the city of Hays, brought this action to enjoin certain of the city officers and an electric-light company from entering into a certain contract. He alleged that the city has and operates a waterworks system costing about $50,000, the pumps and engines of which with their installation cost at least $9500, the engines having power sufficient to pump 50,000 gallons of water an hour and the pumps when working at full efficiency being sufficient to throw that amount of water an hour into the mains and tanks of the city; that an ordinance was enacted authorizing a contract with the electric-light company to pump all of the water for the city for five cents a thousand gallons, not to exceed $2000 for any year, the city to install a motor-driven pump in the large well at the city’s pump house; that no estimate by the city engineer had been made of the cost of pumping water by motor-driven pumps, and that the cost of the city for pumping under the proposed contract would be greater than by the use of the present system. A temporary injunction was granted, and upon motion to dissolve certain evidence was heard and a modified order made enjoining the defendants from proceeding without first submitting an estimate from the engineer as to the cost of the work and materials called for in the contract, but not re straining them from proceeding anew whenever such requirements should be met. Other matters were averred and other points considered which need not be mentioned. The defendants appeal and contend that neither the contract for pumping nor the agreement to install a motor-driven pump is a work or improvement within the meaning of section 1413 of the General Statutes of 1909 requiring an estimate, but are matters within the discretion of the city officials; and also that the plaintiff was not authorized to bring this suit. The plaintiff has filed no brief. Chapter 122 of'the Laws of 1911 authorizes the city to purchase, procure, provide and contract for the construction of various things, including electric current. Section 1413 of the General Statutes of 1909 provides: “Before the city council shall make any contract for building bridges or sidewalks or for any work on streets, or for any other work or improvement, an estimate of the cost thereof shall be made by the city engineer and submitted to the council; and no contract shall be entered into for any work or improvement for a price exceeding such estimate.” This is section 68 of the city of the second class act of 1872 (Laws 1872, ch. 100), and is found in article 3, concerning the general powers of the mayor and council, and follows various sections providing for improvements, including streets, sidewalks, shade trees, market houses, hospitals, waterworks, levees and “all improvements of a general nature in the city.” (Gen. Stat. 1909, § 1379.) In considering a similar provision it was stated in Kansas City v. Cullinan, 65 Kan. 68, 68 Pac. 1099: “It is quite apparent that the purpose of this section is to prevent fraud and imposition in the letting of contracts, as well as to inhibit the creation of a liability against the city by the mayor and council before the maximum cost of a proposed improvement shall be known.” (p. 72.) (See, also, Abilene v. Lambing, 78 Kan. 484, 96 Pac. 838.) A work or improvement within the meaning of this section usuálly implies some physical change or construction. “Improvement” has been defined as— “An amelioration in the condition of real or personal property effected by the expenditure of labor or money for the purpose of rendering it useful for other purposes than those for which it was originally used, or more useful for the same purposes. It includes repairs or addition to buildings, and the erection of fences, barns, etc.” (2 Bouvier’s Law Dictionary, Rawle’s Third Revision, p. 1517.) A “local improvement” has been defined as— “A public improvement which by reason of its being confined to a locality, enhances the value of adjacent property, as distinguished from benefits diffused by it throughout the municipality.” (City of Chicago v. Blair, 149 Ill. 310, syl. ¶ 4, 36 N. E. 829.) In the same decision such an improvement was held to involve the idea of permanency. (See I. C. R. R. Co. v. City of Decatur, 154 Ill. 173, 176, 38 N. E. 626.) The change of the plan from doing the pumping to contracting to have it done by the electric-light company, aside from the installation of the pump • in question, does not involve a physical construction or change, but appears to be within the general powers of the city officers. (Gen. Stat. 1909, § 1373; Asher v. Water Co., 66 Kan. 496, 71 Pac. 813.) It is contended that the provisions of section 265 of the civil code, that “any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction,” are not sufficient to authorize the maintenance of this suit by the plaintiff. Decisions are cited as to the special interest in the subject matter of the action that one must have before he can be a plaintiff. This section has been passed .upon, however, and in Gas Co. v. Railway Co., 74 Kan. 661, 87 Pac. 883, the right of an individual taxpayer to maintain such a suit was upheld. This was followed and approved in Meistrell v. Ellis County, 76 Kan. 319, 91 Pac. 65. A careful examination of the record shows that while the contemplated contract involves the installation by the city of the motor-driven pump referred to, it does not appear that the city has contracted with any one for erecting or furnishing such pump. Section 1413 covers contracts made by the city with some other party for some work or improvement to be furnished or supplied by such party to the city, and does not apply under the circumstances here presented. Very likely, before the city enters into a contract with any one to furnish or install for it such pump, an estimate of the cost will be necessary, but this question is not now before us and is not decided. The arrangement thus far appears to be within the discretion of the city officials. The modified order of injunction is therefore reversed.	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The opinion of the court was delivered by Porter, J.: . The appellant was convicted of the charge of violating a city ordinance by making a sale of one glass of a beverage “known as and commonly called “Temp-Brew.” The validity of the ordinance is the sole question raised by the appeal. The city of Wichita is a city of the first class. In 1909 it passed an ordinance the title of which reads: “An ordinance regulating the sale, barter and gift of Malt, Hop Tea, Hop- Tea Tonic, Two Percent, Tin Hop, Health Tone, Rosenbrew, and all other nonintoxicating malt or other beverages, containing any per cent of alcohol whatever, in the city of Wichita, and providing a penalty for the violation of this ordinance, and repealing ordinance number 3187 and all other ordinances or parts of ordinances in conflict with this ordinance.” The words “containing any per cent of alcohol whatever” appear in the title, but are omitted in the body of the ordinance. The provision of the ordinance which appellant was charged with violating is that part of section 1 which reads: “That it shall be unlawful for any person or persons to sell, barter or give away in the city of Wichita, any Malt, Hop Tea, Hop Tea Tonic, Two Percent, Tin Hop, Health Tone, Rosenbrew, or any other nonintoxicating malt or other beverage in less quantities than one (1) gallon at a sale.” At the trial the cause was submitted upon an agreed stater ment of facts, which is embodied in the court’s findings. This statement is, that the beverage sold by the appellant was known as “Temp-Brew”; that it had been subjected to a chemical analysis which showed that the beverage contained' “no alcohol, maltose, malt, or yeast cells, and that it furnished no evidence of fermentation.” The court found it to be “a beverage having the color and appearance of beer” and “an odor similiar to beer,” that when drawn from a keg it “foams like beer, but does not taste like beer, and that it is a brewery product” which “in color, odor, and appearance as to foaming is very similar to ‘Two-Percent’ but not similar in taste.” All parts of the ordinance, including the title, should be read together in order to determine the object and purpose of its enactment. The title shows that the city intended to prohibit the sale of all beverages which are specifically enumer ated therein and “all other nonintoxicating beverages containing any per cent of, alcohol whatever.” It is unreasonable to suppose that it was intended to prohibit the sale of all nonintoxicating beverages, although section 1 reads, “or any other nonintoxicating malt or other beverage,” for literally the ordinance would prohibit the sale, in quantities less than one gallon, of lemonade, tea, milk, soda-pop, coffee, buttermilk, and all kinds of beverages usually dispensed at drug stores and soda founts, regardless of whether they are intoxicating or nonintoxicating. It is more in accord with reason to hold that it was the intention of the city to prohibit the sale, in quantities less than one gallon, of all nonintoxicatirig beverages containing any per cent of alcohol whatever. If, as argued by the city, it was the intention to prohibit the sale of any beverage which is a brewery product, whether intoxicating or noniritoxicating, and regardless of whether it contains any per cent of alcohol, then the ordinance would be open to the objection that it is unreasonable and void. The legislature has not authorized cities to prohibit the sale of harmless beverages merely for the reason that they are manufactured in breweries. A brewery might engage in the manufacture of grape juice, soda-pop, bottled lemonade, or other harmless beverages. But there is no occasion for speculation concerning the motive or wisdom or propriety of the provisions which appellant- is charged with violating. The broad language of section 1 of the ordinance is necessarily limited by the language of the title. (Gen. Stat. 1909, § 1060; City of Winfield v. Hackney, 87 Kan. 858,126 Pac. 1088, and cases cited in the opinion.) Referring to the constitutional provision in regard to the title of a statute it was said : “Where the title to an act is not broad enough to include everything contained in the act, that which is not included within the title must be held to be invalid, for such is evidently the manifest intention of the constitution; and the courts have no power to enlarge or extend or amplify the title to an act, any more than they have to enlarge or diminish or modify or change the act itself.” (The State v. Barrett, 27 Kan. 213, syl. If 9.) Nothing in.the title indicates a purpose to classify the products of breweries and prohibit or regulate their sale; and it is equally silent as to any purpose to regulate or prohibit the sale of beverages not containing some per cent of alcohol. The title is sufficiently broad to include the regulation of the sale of all beverages “containing any per cent of alcohol whatever” in addition to the particular beverages specifically mentioned in the title; but in order to hold that it includes the regulation of the sale of beverages that do not contain “any per cent of alcohol whatever,” requires us to legislate something into the title which is not there. This we are forbidden to do. (The State v. Barrett, supra.) The ordinance is penal and must be construed strictly, the same as a criminal statute; which means “that the language is not to be extended by implication so as to embrace cases or acts not clearly within the prohibition of the statute.” (The State v. Prather, 79 Kan. 513, 515, 100 Pac. 57, 21 L. R. A., n. s., 23, 131 Am. St. Rep. 339.) The provisions of section 1 of the ordinance, so far as they apply to the admitted facts in this case, not being included in the language of the title, are in conflict with section 1060 of the General Statutes of 1909, and therefore must be held void. The judgment is reversed.	[ -16, -22, -36, -33, 62, 112, 42, -100, 2, -107, -11, 115, -23, 80, 5, 41, -29, 125, 113, 88, -27, -89, 23, 73, -42, -5, -54, -57, -79, 111, -27, -2, 76, 96, 75, -3, -26, -53, -53, -36, -114, 1, 9, 97, 91, -119, 52, 123, 115, 75, 113, -113, -1, 44, 24, -61, -19, 44, -37, 61, -64, -7, -120, -99, -19, 22, 0, 38, -36, -91, -38, 44, -108, 113, 8, -24, 115, -90, 6, -12, 15, -55, -115, 98, 99, 33, 9, -21, -88, -116, 45, 30, -67, -89, -68, 89, 105, -96, -68, -100, 100, 18, -125, 122, -21, -43, 95, 124, -124, -114, -92, -79, 11, 32, -62, 23, -17, -89, 1, 101, -59, 62, 92, -60, 50, 27, -114, -108 ]
The opinion of the court was delivered by Marshall, J.: This is an action to set aside a will. Judgment was rendered declaring all bequests and devises to Ralph L. Funk, his appointment as executor, and all authority granted to him under the will, invalid, because of undue influence exercised by him over the testatrix, Mattie J. Adams. Ralph L. Funk, individually and as executor, appeals. This is the second time this case has been before this court. (Black v. Funk, 93 Kan. 60, 143 Pac. 426.) A statement of the facts made in the former opinion corresponds very closely with the facts established by the evidence as shown in the abstracts now before the court. The principal differences are that Mrs. Adams selected the witnesses to the will and they were paid at her request, and the facts shown by the evidence of S. F. Newlon, the attorney who as scrivener drew the will. The former judgment of the trial court was reversed and the cause sent back for a new trial on the question of undue influence and fraud on the part of Dr. Funk with respect to the provisions of the will beneficial to him; this because the court excluded the evidence of S. F. Newlon, the attorney who drew the will. That evidence was admitted on the trial from which this appeal is taken, and it showed that the will in all its details was drawn as directed by Mrs. Adams; that as each of the several parts of the will was reduced to writing it was submitted to Mrs. Adams for approval or change before being put in the final draft; that some of the provisions as first written were changed at her direction; that no other person was in the room with Mrs. Adams and Mr. Newlon while they were talking about the will and while it was being written; that no person made any suggestion to Mrs. Adams concerning what should go into the will; that Newlon made no suggestion concerning the will but wrote it as she directed; and that all'the details of the will were directed by Mrs. Adams, but the language was framed by Mr. Newlon. _ There was no direct evidence to show that Doctor Funk exercised any influence over Mrs. Adams in the making of her will or that he made any suggestions whatever to her concerning the matter; neither was. there any evidence to show that Doctor Funk had ever been dishonest with Mrs. Adams in the conduct of her business affairs while she was living. The will itself should be considered. It is in part as follows: “First. I desire that all of my just debts be paid by .the first moneys that come into the hands of my executor hereinafter appointed, for any part of my estate, and I desire that I may be buried in a manner suitable to my condition and surroundings in life. “Second. I will, devise and bequeath to Lizzie ihelds the sum of $3000 during the natural life of her the said Lizzie Fields, with the remainder over, after- the death of the said Lizzie Fields, to her son, Cecil Fields. . . . hereby giving to the said Lizzie Fields, the use and benefit of said above mentioned $3000 during her life, with the provision, and this bequest made on this condition that $1000 of said $3000 shall be invested in a home for the said Lizzie Fields, and the remainder of the said $3000 shall be invested in a first mortgage or mortgages in real estate in Brown county, Kansas, the said Lizzie Fields to have the full use, rents and profits of said home during her natural life, and the full use, interest, rents and profits of the said $2000 so as above mentioned, during her natural life, and on the death of the said Lizzie Fields, said home so bought as above mentioned, shall go to said Cecil Fields absolutely, but that the said above mentioned property going to the said Cecil Fields shall remain in the care and control of my executor until the said Cecil Fields becomes twenty-one years of age, except what may be necessary, in the judgment of said executor, for his care and maintenance. “Third. I will, devise and bequeath to the Powhattan Cemetery Association, the use, rents and profits of the sum of $3000 to go to the keeping up and maintenance of the Powhattan Cemetery, in Brown county, Kansas, said sum of three thousand dollars to be invested by my executor and put out by him in first mortgage, or mortgages, in Brown county real estate, said Cemetery Association to get the benefit of the rents and profits of said sum of $3000 to assist in keeping up and maintaining said cemetery, said rents and profits to be used in said maintenance according to and under the advice of my said executor. “Fourth. I will, devise and bequeath and set apart the sum of $5000 to be invested by my executor in first mortgage, or mortgages, on Brown county real estate, the rents and profits and interest of said above mentioned $5000 to go-to the .maintenance and care of a cemetery lot, on which I and my deceased husband have a vault, said rents and profits to be used in the purchase and planting of flowers in and upon said lot, and in beautifying the same, and taking care of and preserving said lot and the vault thereon. Said money to" be invested as above mentioned, in said Brown county real estate by my said executor. “Fifth. I will, devise and bequeath to my niece, Mrs. R. D. Jones, the sum of $5000 in cash. “Sixth. I will, devise and bequeath to my niece, Mrs. F. M. Cooper, the sum of $3000 in cash. “Seventh. I will, devise and bequeath to Millard Short, the sum of $3000, said sum of $3000 to be invested by said executor for the use and benefit of the said Millard Short, until he becomes twenty-five years of age, the said rents, and profits of said above mentioned $3000 to be used by my said executor for the care and maintenance of the said Millard Short, if in the judgment of my said executor, he needs the rents and profits and interest thereon for his care and maintenance before he arrives at the age of twenty-five, but if in the judgment of my said executor he does not need said interest, rents and profits for his care and maintenance until he becomes twenty-five years of age, said rents and profits are also to be invested by my said executor until the said Millard Short becomes twenty-five years of age, all of which said $3000 and rents and profits to be invested in first mortgages on Brown county real estate, provided, if he die under twenty-five years of age said $3000 shall go as hereinafter provided. “Eighth. I will, devise and bequeath to the Methodist Episcopal ■ Church of Powhattan, Brown county, Kansas, the sum of $3000 to be invested in a first mortgage or mortgages on real estate in Brown county, Kansas, the interest, rents and profits to be used under the advice of my said executor in the maintenance and care of the church building and grounds of said Methodist church, said sum of $3000 to be a perpetual fund to said church, the said rents and profits, only, to be used as above mentioned. “Ninth. I will, devise and bequeath to my nephew, Charles Black, the sum of $3000 in cash. “Tenth. I will, devise and bequeath to Mrs. Augusta Lytle, wife of William Lytle, the sum of $2000 in cash. “Eleventh. I will, devise and bequeath to James M. Adams and Susan C. Adams, his wife, the sum of $3000 during the natural life of the said James M. Adams and Susan C. Adams, or as long as they, or either of them, may live, that is to say, that during the lifetime of both of them, they have the use, interest, rents and profits, of said above $3000 and on the death of one of them, the survivor has the use, rents and profits and interest of said above described and mentioned $3000 as long as the survivor lives, but on the death of said survivor, the remainder shall go as hereinafter specified. “Twelfth. The remainder and residue of all my property of all kinds, nature and description, after the payment of the above legacies, as above mentioned, I will, devise and bequeath to Dr. Ralph L. Funk, this bequest to the said Ralph L. Funk is made to him by reason of work he has done, care and maintenance he has taken of me and my property, and for the further consideration that the said Ralph L. Funk is to be and will be nominated and appointed as the executor of this my last will and testament, and this bequest includes to the said Ralph L. Funk, the remainder in the $3000 willed to the said James M. Adams and Susan C. Adams, after the life estates of the said James M. Adams and Susan C. Adams have been terminated by the death of the said James M. Adams and his wife, Susan C. Adams, hereby willing, bequeathing and devising to him, the remainder in said sum of $3000 and also, including the said sum of $3000 willed and devised and bequeathed to the said Millard Short, provided the said Millard Short should die before he arrives at the age of twenty-five years. “Thirteenth. I hereby instruct and give my executor hereinafter appointed, full power to reduce all of my property to money, and to sell any and all real estate of all kinds that I own, and reduce the same to money, hereby giving and devising to my said executor full power to make any and all transfers by deed, or otherwise, and hereby giving him full power to sign any and all deeds and papers necessary to reduce my said estate into money, and to sell and convey any and all realty that I may own at the time of my death, and transfer all title therein, and place the purchaser or purchasers in possession thereof. “Fourteenth. I hereby nominate and appoint Ralph L. Funk as the executor of this my last will and testament.” One with testamentary capacity, yet under the undue influence of another, could not do what the evidence of Newlpn shows was done by Mrs. Adams when the will was being drawn, without the presence and suggestion of.the person exercising the influence. The evidence of S. F. Newlon and the will itself establish the fact that undue influence was not exercised by Doctor Funk at the time the will was drawn, notwithstanding the circumstantial evidence, which, without the evidence of Newlon, tended to show that undue influence might have been exercised. In many respects this case in its facts is very similar to Hopper v. Sellers, 91 Kan. 876, 139 Pac. 365. In that case the question of undue influence turned largely on the evidence of the attorney who acted as scrivener in drawing the will, concerning what took place at the time the will was being written. In the present case the evidence of S. F. Newlon, not in any way attacked or disputed by evidence, finding, brief or argument, together with the will itself, is controlling as against the circumstantial evidence, which is just as consistent with good faith on the part of Doctor Funk as it is with the exercise of' undue influence on his part. In Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, this court said: “To vitiate a will there must be more than influence. It must be undue influence. To be classed as ‘undue,’ influence must place the testator in the attitude of saying: ‘It is not my will but I must do it.’ He must •act under such coercion, compulsion or constraint that his own free agency is destroyed. The will or the provision assailed does not truly proceed from him. He becomes the tutored instrument of a dominating mind, which dictates to him what he shall do, compels him to adopt its will instead of exercising his own, and by overcoming his power of resistance impels him to do wliat he would not have done had he been free from its control.” (p. 725.) Under this rule, undue influence is not shown in the present case. The trial court, with the evidence of S. F. Newlon, reached ,the same conclusion on the last trial that it did without that evidence on the former trial. In this we think the court made a mistake. The judgment is reversed, and the cause is remanded with directions to enter judgment sustaining the will in all its parts.	[ -80, 124, -36, 31, 74, 96, 42, -102, 113, -96, -79, 83, -23, 82, 20, 105, 115, -81, 80, 107, -43, -109, 23, 41, -14, -45, -8, -99, -79, -4, -10, 95, 77, 40, 10, -43, 102, -127, -63, 80, -114, 8, 8, 69, 89, -64, 48, 47, 124, 71, 101, 31, -77, 41, 29, -34, 104, 44, 91, -72, 80, -80, -120, -121, 127, 18, 49, 6, -100, -91, 88, 42, -104, 49, 1, -24, 113, -90, -106, 116, 111, -119, 8, 98, 98, -80, -59, -19, -104, -120, 7, 126, -115, -89, -106, 88, -55, 65, -74, -68, 117, 80, 2, -6, -22, 21, 29, 108, 8, -53, -42, -95, 9, 60, -100, 26, -21, -31, 18, 117, -51, -94, 92, 71, 83, -101, -114, -10 ]
The opinion of the court was delivered by Porter, J.: The defendant, a surety company, executed its bond to indemnify plaintiff in the event a construction company failed to complete the erection of a cement plant on or before July 1, 1911. On the failure of the company to complete the building plaintiff brought suit on the bond and recovered judgment. The bond contained the following provision: “That in the event of default on the part of said principal a written notice of such default shall be delivered to the Surety at its office in the city of Cleveland, Ohio, said notice to be deposited within the mails within ten days after such obligees, or their representatives shall learn of such default.” The defendant’s appeal is based upon one contention, which is that the evidence conclusively shows the failure of plaintiff to give the required notice. On February 27, 1911, the con struction company wrote plaintiff asking for. an extension of time for completing the work, and in the letter said: “It is very probable that we may not have the plant entirely completed by the first day of July.” Plaintiff replied by letter that he Would prefer not to grant the extension until further inquiry in the matter and stating that the bond was good until July 1, 1911. On March 4 the construction company wrote him again, asking a definite reply to their request; and here the correspondence ended. The plaintiff testified that he did not learn until August 16, the same date he notified defendant, that the plant was not completed by July 1. The defendant’s demurrer to the evidence was overruled. The defendant elected to stand upon the demurrer, and judgment went in plaintiff’s favor. If the court believed plaintiff’s testimony that he first learned of the default August 16, the letter of that date notifying the defendant was all that was required under the provisions of the contract. Besides, the defendant has neither alleged nor attempted to show that it suffered any loss by failure to receive notice earlier. “Actual damage resulting from failure to give notice must be pleaded and proved as a defense” (Republic County v. Guaranty Co., 96 Kan. 255, 258, 150 Pac. 590) in an action against a surety company engaged in the business of furnishing bonds of this character for compensation. Judgment affirmed.	[ -12, 108, -40, -52, -118, 96, 58, -38, -3, 37, 33, 83, -51, -62, 20, 43, -10, 125, 117, 120, 84, -77, 51, 67, -46, -13, -78, -43, -79, 111, -12, -41, 76, 32, 10, -107, -26, -118, -43, -40, -50, -123, 26, -19, -39, 81, 48, -37, 48, 79, 49, -100, -29, 39, 25, 78, 105, 40, -21, 61, -32, -15, -71, -123, 127, 20, -111, 69, -100, 71, 120, 30, -104, -79, 1, -24, 82, -73, -121, -12, 105, -103, 40, 98, -29, 0, 21, 125, -2, -40, 6, -4, -101, -90, -111, 56, 11, 101, -74, -99, 41, 21, -25, -2, -18, 5, 95, 44, 3, -53, -14, -77, 11, 118, -102, -115, -25, -80, 48, 96, -52, 32, 94, 99, 115, -101, -49, -67 ]
The opinion of the court was delivered by Mason, J.: In June, 1906’ T. J. Durant executed a will giving half his property to his wife, making specific devises to her and to a brother of a former Avife, and leaving the residue to his nephew and to nieces and nephews of his former wife. He died in February, 1909, being then 79 years of age. He left no children. His widow brought an action to set aside the will' on the ground of want of testamentary capacity and fraud. Judgment was rendered for the defendants, and she appeals. Complaint is made of the rejection of evidence that the testator’s brother-in-law, to whom the will gave an eighty-acre tract of land, already owned more than a thousand acres. The matter does not seem of vital importance, but in any event the ruling can not be reviewed, because the evidence was not produced at the hearing of the motion for a new trial. , (Civ. Code, § 307.) (1) The draftsman of the will — a lawyer — was permitted to testify in detail as to conversations between himself and the testator at the time of its preparation and execution. This is objected to as a violation of the rule relating to privileged communications between attorney and client. (Civ. Code, § 321.) The ground upon which the petition attacked the will (apart from the question of capacity) was that the testator’s signature was procured by the representation of the lawyer that it was a paper of a wholly different character. That the lawyer’s testimony was competent is settled by a recent decision where the witness’ relation to the testator was subsantially thé same' as in the present case, and where his testimony covered practically the same field. (Black v. Funk, 93 Kan. 60, 143 Pac. 426, ante, p. 509, 155 Pac. 959. See, also, Lumber Co. v. Cox, 94 Kan. 563, 147 Pac. 67.) (2) The testimony of the scrivener and the subscribing witnesses concerning the testator’s capacity is objected to on the ground that they were asked the direct question whether he was of sound mind, instead of being required to state their opinions, and on the further ground that their acquaintance with him was not such as to render their opinions competent. There is hardly a substantial difference between asking a witness his opinion of the mental condition of another and asking him to state what that condition was, but if any particular questions were incompetent in form the error in their admission was immaterial, for they are not shown to have affected the judgment. (Kimball v. Edwards, 91 Kan. 298, 137 Pac. 948.) The other objection goes rather to the weight, than to the admissibility of the evidence. Any witness who has “a fair basis for an opinion” concerning the mental condition of another person is qualified to testify. (The State v. Beuerman, 59 Kan. 586, 589, 53 Pac. 874.) “Whether there is a fair basis for an opinion by a witness must be left largely to the trial court.” (Kempf v. Kappa, 74 Kan. 153, 155, 85 Pac. 806.) The effect of the evidence is for the determination of the tribunal before which it is given. (Howard v. Carter, 71 Kan. 85, 80 Pac. 61.) Here each of the subscribing witnesses had done business with the testator and had had considerable opportunity for observing his conduct. Their relation to the making of the will disposes of any question regarding their competence. “Whatever the result of the controversy as to lay witnesses in general all Courts have preserved the traditional practice of receiving the opinions of attesting witnesses to wills. The theory that the law had provided this preappointed testimony for the express purpose of securing witnesses to the testator’s capacity as well as to his signature, as well as the unquestioned practice, prevailed over any theory that the judges might have as to the bearing of the Opinion rule.” (3 Wigmore on Evidence, § 1936.) (3) The principal contention of the plaintiff is that the judgment is not supported by the evidence. The trial court must be deemed to have accepted the version of the lawyer who drew the will as to what took place at that time, and this disposes of all question regarding the practice of the fraud alleged in the petition. A large amount of evidence was given tending to show that the testator was enfeebled in body and mind and was incapable of transacting business. But there was also competent and substantial oral evidence to the contrary. The lawyer said: “I think he was of sound mind and memory. He had sufficient mind to know what he was doing, and to know what property he possessed.” One subscribing witness said: “I had no question as to his soundness of mind at that time; I believe and thought he was of sound mind and I now say he was.” The other said: “I supposed he was mentally sound and when the will was drawn; I know it just as much as I know any man was.” We can not review the decision of the trial court upon the conflicting oral evidence. The judgment is affirmed.	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The opinion of the court 'was delivered by DAWSON, J.: The petitioner has invoked the original jurisdiction of this court under a writ of habeas corpus, in which she seeks her liberty. She was arrested by the chief of police of the city of Salina on a warrant issued by the police court of that city, in which it is recited, with appropriate preliminaries, that “on or about the 25th day of November, A. D. 1915, at the city of Salina, county of Saline and state of Kansas [Nina Will] did then and there unlawfully transport, carry and haul spirituous, vinous, fermented and malt liquor upon the streets, avenues and alleys of the city of Salina, Kansas, contrary to ordinance No. 1879 in such cases made and provided.” The ordinance reads, in part, as follows: “Section 1. Be it ordained that it is unlawful for any person, individual, company or corporation to transport or carry any spirituous, vinous, fermented or malt liquor or any imitation thereof upon the public streets, avenues and alleys of said City of Salina, or to haul the same upon said streets, avenues or alleys.” Section 2 provides punishment for the violation of the ordinance ; and section 3 exempts interstate commerce from interference under it. In the brief for petitioner many objections are made to the' ordinance. It is argued, in substance, that it is against common right and unconstitutional and void; that the city has no power to enact such an ordinance; that the hauling of liquors on the street is neither malum in se nor malum prohibitum. In some peculiar cases persons restrained of their liberty have been permitted to “cut across lots” for the purpose of securing a summary discharge through writs of habeas corpus. (In re Dill, Petitioner, 32 Kan. 668, 691, 5 Pac. 39; In re Neagle, 135 U. S. 1; 21 Cyc. 287, Note, 25.) After conviction under a void statute or ordinance, and when the time to appeal has expired, a discharge by writ of habeas corpus may be secured, for in such case it is the only remedy. (In re Jarvis, 66 Kan. 329, 71 Pac. 576.) So, also, where the judgment is void. (In re Smith, Petitioner, 52 Kan. 13, 33 Pac. 957; In re Norton, 64 Kan. 842, 68 Pac. 639; In re Spaulding, 75 Kan. 163, 164, 88 Pac. 547.) But many years ago this court decided, after full consideration, that where the case in the lower court had not been disposed of, and where the regularly established procedure was still available to the party seeking redress, the orderly jurisdiction of the lower court which issued the warrant and the ordinary procedure for trial and appeal should not be interfered with through writs of habeas corpus out of this court. In the case of In re Gray, 64 Kan. 850, 68 Pac. 658, it was held that the courts and judges of this state are without power to inquire into the constitutionality of a city ordinance upon the application of one arrested for a violation of such ordinance who, in default of recognizance, is committed to the city jail to await a speedy trial for the offense charged. In the case of In re Terry, 71 Kan. 362, 80 Pac. 586, it was held that habeas corpus will not lie to inquire into the legality of a warrant or commitment issued from a court of competent jurisdiction before final trial and judgment. In the case of In re Sills, 84 Kan. 660, 114 Pac. 856, it was held that a party to a criminal action pending in a court of competent jurisdiction is not entitled to a discharge on habeas corpus before final trial and judgment on the ground that the complaint is based upon an unconstitutional statute, although a motion to quash the complaint on the ground stated has been denied. In the very recent case of In re McKenna, ante, p. 153, 154 Pac. 226, Mr. Justice Marshall said: “This court will not release, on habeas corpus, one who is held under a warrant issued on an information that does not charge any offense, before an application of any kind is presented to the court issuing the warrant. Many informations are defective and must be amended before the defendant can be properly placed on trial on the charge attempted to be set out therein, but habeas corpus is not the means resorted to for the purpose of protecting the defendant. Subdivision 4 of section 699 of the code of civil procedure prohibits habeas corpus where the one applying for the writ is held on a warrant issued on an information.” (p. 154.) No refinement of reasoning would justify a distinction between a warrant based on an information and a warrant based on a complaint. We do not think it proper at this time to determine the validity of the ordinance. The application is denied and the petitioner is remanded.	[ -16, -22, -8, 31, 59, -32, 10, -104, 83, -79, -11, 83, -19, 88, 5, 123, 123, 125, 117, 121, -10, -74, 7, 65, 82, -45, -104, -43, -78, 75, -28, 70, 13, 112, -118, -99, 102, -53, -109, -36, -50, 53, -119, -47, 83, 0, 56, 43, 18, 10, -15, 31, -13, 46, 24, -61, -87, 44, -53, 61, -23, -8, -104, 29, 111, 6, -95, 38, -108, -89, -64, 58, -100, 17, 1, -8, 115, -76, 18, 116, 47, -37, -115, 102, 98, 1, 13, -18, -88, -116, 47, 122, -99, -58, -112, 88, 99, -128, -74, -99, 108, 16, 3, -4, -2, 21, 89, 108, -113, -50, -76, -79, -117, 48, -94, 87, -53, -25, 48, 117, -59, 54, 92, 87, 112, 27, -49, -40 ]
The opinion of the court was delivered by West, J.: The defendant was convicted of maintaining a liquor nuisance and appeals, assigning as error that the verdict is contrary to the law and the evidence. Numerous witnesses desired the jury to believe that it was a social affair by a club, but the sheriff and undersheriff told what they saw, and this was quite sufficient to support, the verdict/ Being in accord with this part of the evidence, which the jury evidently believed, the verdict is also in harmony with the law. The judgment is affirmed.	[ -96, -22, -100, -100, 10, 64, 42, -8, 64, -75, -74, 115, -87, -62, 28, 99, -85, 95, 84, 107, -34, -105, 7, 1, -46, -45, -14, -59, -75, -20, -9, 125, 77, -80, -61, -43, 102, -53, -43, 80, -126, 7, 56, -55, 65, 24, 52, 59, -124, 11, 97, 31, -29, 44, 24, 67, 105, 44, 75, 61, 80, -8, 24, -115, 73, 4, -109, 50, -36, -125, -56, 46, -112, 49, 1, -24, -13, -74, 4, 116, 13, -37, 13, 102, 98, 1, 29, -85, 40, -67, 46, 30, -116, -89, -72, 25, 73, 104, -106, -35, 102, 16, -121, -26, -24, 84, 27, 100, 3, -54, -112, -77, -119, 60, 22, 78, -51, 33, 16, 97, -59, 104, 92, -27, 80, -37, -114, -106 ]
The opinion of the court was delivered by Burch, J.: The action was one on an injunction bond conditioned for the payment of damages if it were decided that the injunction ought not to have been granted. A demurrer was sustained to the petition and the plaintiff appeals. The plaintiff, Heaton, contracted to sell to the defendant, Burnside, two hundred tons of hay, and to grant Burnside a variety of valuable privileges not now material. The hay was in stacks which were to be measured by a certain rule. The sale included five specified stacks. The remainder of, the two hundred tons was to be chosen by each party, stack and stack about. Burnside brought an action for specific performance of the contract and secured a restraining order preventing Heaton from disposing of any of his hay, amounting altogether to some three hundred and fifty tons. The bond was given in connection with this order. Thirteen days later the district court modified the restraining order by releasing all hay except two hundred tons, including the five particular stacks, the remainder of the two hundred tons to be average hay. When the specific-performance action came on for trial Heaton had disposed of his hay, specific performance was no longer possible, and it was stipulated the action should proceed as one for damages. The result was a judgment in favor of Burnside for $450. In this action the records and files of the specific-performance suit were referred to and made a part of the petition. The damages claimed were for a fall in the price of hay within the thirteen days the restraining order stood unmodified, and for attorney fees and expenses. It is said that the modification of the restraining order constituted an adjudication that the order was wrongfully granted. Instead of this, the modification in effect merely made the choice of stacks of hay, which the parties to the contract were entitled to make, by giving Burnside the five stacks and enough average hay to bring the quantity up to two hundred tons, and released the remainder. Under the contract Burnside had the right to choose from all Heaton’s hay and was entitled to have all the hay kept subject to his choice of stacks. When the court in furtherance of justice gave Burnside a sufficient quantity of average hay in place of hay of his own choosing, it did not follow that the order restraining disposition of all the hay was wrong or improvident. There can be no doubt of this, because the district court has in effect interpreted its order modifying the restraining order. After the proceeding to modify had been concluded a journal entry was prepared and filed reciting that the restraining order had , been wrongfully obtained. When the matter was called to the court’s attention it corrected the journal by striking out the recital that the restraining order had been wrongfully obtained. It is said that when Burnside elected to proceed as if the specific-performance suit were simply one for damages his conduct amounted to an abandonment of the cause of action to which the injunctive relief was an incident, and to a confession that the restraining order was wrongfully obtained. (See, Tullock v. Mulvane, 61 Kan. 650, 60 Pac. 749.) The journal entry of judgment, however, shows that the hay had been disposed of and could not be delivered. Consequently Burnside had no election between specific performance and damages, but was obliged to accept the remedy by way of damages in lieu of the remedy by specific performance which he desired. The final judgment was, as has been stated, in favor of Burnside and not of Heaton. Since the petition failed to disclose a breach of the bond, the d'emurrer was properly sustained and the judgment of the district court is affirmed.	[ -16, 124, -35, 13, 10, 32, 42, -72, 105, -95, 119, 83, -21, -46, 4, 41, -9, 105, 117, 104, 93, -77, 7, -64, -26, -45, -61, -59, -79, 111, -58, 94, 77, 20, 10, 87, -26, -118, -59, 28, -114, 1, 41, 109, -23, 66, 48, 123, 22, 75, 97, -97, -13, 44, 25, -61, 109, 40, -5, 41, -47, -15, -69, 13, 127, 30, -110, 38, -68, 7, 90, 110, -112, 57, 1, -24, 83, -94, -106, 116, 15, -70, 41, 102, 98, 1, 68, -51, 72, -24, 46, 127, -113, -90, -112, 24, 42, 66, -90, -99, 116, 20, -105, 126, -3, -115, 13, 108, 10, -58, -106, -93, -49, 88, -100, 5, -49, 35, 17, 101, -49, -90, 92, 67, 80, -101, -114, -113 ]
The opinion of the court was delivered by Johnston, C. J.: This suit was brought by Joseph Epley, a taxpayer of Harvey county, to enjoin J. M. Hall, George Kline and Otis Moots, members of the school board of district No. 41, from paying any money out of the funds of the school district to defendant Irene Kelley, a music teacher employed by the board. The injunction was denied. The case was tried before the court upon an agreed statement of facts, setting forth that Irene Kelley, who held a certificate as a qualified teacher of vocal music, applied to and was employed by the board, in addition to the regular qualified teacher, to supervise and teach music in the district school, which had about twelve pupils. Under the. plan adopted she visited the school once each month while school was in session and in the presence of the regular teacher, gave a model lesson in vocal music and left directions with the regular teacher to be followed during the coming month, after reviewing the work that had been done during the previous month. Her salary for this work was fixed at five dollars a month. Before employing Miss Kelley, the board had had some correspondence with the state superintendent of public instruction and the attorney-general with reference to the legality of making the contract for this work, and were advised that it was within their authority. Plaintiff contends that the contract was unauthorized and illegal, as being an attempt to substitute Miss Kelley’s plan of music study for the plan adopted by the state' board of education pursuant to chapter 272 of the Laws of 1913, providing for a uniform course of study for rural schools. Defendants contend that the law authorizes the board to provide for the teaching of music, and the question as to how they should provide for it was a matter within their own discretion,. whose exercise is not to be reviewed in a court if there is no abuse of their power and discretion. In respect to rural schools the law provides: “That in each and every school district shall be taught orthography, reading, writing, English grammar, geography, arithmetic, history of the United States and history of the state of Kansas, and such other branches as may be determined by the district board: Provided, That the instruction given shall be in the English language.” "(Gen. Stat. 1909, § 7478.) The provision which permits other branches to be taught vests the district board with authority to provide for the teaching of music. (Board of Education v. Welch, 51 Kan. 792, 33 Pac. 654.) It is contended that the question whether or not music shall be taught is controlled by chapter 272 of the Laws of 1913. That act provides in effect that the state board of education shall prepare a course of study for the common schools of the state of Kansas, and arrange it so that no pupil shall be required to study or recite in more than six of the subjects comprising the curriculum, and providing that the course of study shall be wholly based upon texts which have been duly adopted by the state school book commission. Certain subjects are designated as major subjects, upon which the pupils are required to study and recite, but different provisions may be made as to other subjects, and while music is not mentioned as one of the major subjects comprising the curriculum, the teaching of vocal music was authorized in the course of study prepared for 1914, the year in which this controversy arose. There was a provision that fifteen minutes of every morning should be given to general exercises, including devotionals, and that in these exercises music might be varied with current events and stories having ethical value, but suggesting that two mornings of each week be given over to music. It appears that music was not only recognized by the board as a proper part of the course of study, but in the prescribed course, those in charge of the schools were urged to make provision for training the pupils in music, as follows: “Teach vocal music, if you can, during your period for general exercises. Give at least two lessons' each week. Write the scale on the board and drill on singing it. Use any device for developing a tone and giving the timid confidence enough to make an effort. Sing frequently. Many pupils are afraid to sing in school, but they should be encouraged to make the attempt. Singing exerts only the best influence over a school. Learn many good rote songs. If possible, get song books for your school.” Thus it appears that although music was not designated as a major subject, it was included in the regular course of study prepared by the state board. Under these provisions, the district board therefore had abundant authority to provide for music in the school and pay for the same. Being vested with authority and discretion in the employment of teachers, the district board was at liberty to determine whether the interests of the pupils would be best subserved by the employment of more than one teacher, and the branches to be taught by each. The board was, of course, required to employ qualified teachers, and it appears that the one employed in this instance had passed the examination required by law and held a certificate which certifies that she had furnished satisfactory evidence of good moral character, successful experience in teaching, and was otherwise legally qualified as a teacher. The judgment is affirmed.	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The opinion of the court was delivered by Johnston, C. J.: Amelia Rodgers brought this action against the Chicago, Rock Island & Pacific Railway Company to recover the sum of $10,000 as damages for the death of her husband, John W. Rodgers, on or about the 22d day of December, 1911, which it was alleged was caused by the negligence of the company. In her petition she alleged that Rodgers was a passenger on an eastbound train of the defendant, which arrived at Manhattan on the morning of December 22, 1911, and that a water tank near the west end of the station platform was permitted to be in a leaky and defective condition, with the result that ice accumulated in the trough of the tank at the side of the railroad, and that Rodgers, who alighted from the train before daylight and when the station platform was not properly lighted, passed along the side of the train, slipped on this dangerous accumulation of ice, fell under the train and was killed. The answer of the defendant was a denial of the averments of the petition and a charge of contributory negligence. A trial was had with a jury, and after plaintiff had introduced her evidence a demurrer to the same was sustained and judgment given for the defendant. From the testimony of plaintiff it appeared that Rodgers was an able-bodied man of good habits, about fifty years old and a resident of Manhattan. The day before the casualty he was at Clifton, a station about fifty-two miles west of Manhattan on defendant's railroad. The evening before his death he expressed a purpose to return to Manhattan on a coming train, and early the next morning his dead body was discovered at Manhattan between the west end of the station platform and the water tank of the company. The body was north of the rails, and his legs, which were severed below the knees, were lying between the rails of the track, about four or five feet from the drip trough of the water tank, which was thickly coated with ice. The body lay on his traveling bag and did not appear to have been dragged. There are two railroads on which Rodgers might have traveled from Clifton to Manhattan, but the shorter and more direct route and the one he had expressed a purpose to take is defendant’s railroad. There is no proof that he purchased a ticket at defendant’s station, and no witness saw him enter the train at Clifton. Two of defendant’s trains were scheduled to pass east between Clifton and Manhattan that night, one due at Manhattan at 1 a. m. and the other at 5:25 a. m., but there is nothing to show that Rodgers was seen upon either of them, nor was he seen to leave any of defendant’s trains. The station is near Fourth street, which runs north and south, and steps leading to the station from that street, as well as from one on the north, are provided. West of the station there are some steps leading from the street on the north side, but most of the people entered and left over the steps near the east end of the station on Fourth street. The station platform extends 217 feet west of the station, and the trough of the water tank is located between 9 and 10 feet west of the platform, and 50 feet beyond the platform is Fifth street. Persons on eastbound trains sometimes alighted west of the tank,- and occasionally some of them walked between the track and the tank to the west end of the platform, although there is a large sign placed opposite the water tank with the warning: “No Thoroughfare. Walking on or across tracks is strictly prohibited.” The body of Rodgers was found five feet from the platform, or about half way between it and the trough of the water tank, but beyond the location of his body and an expressed purpose to return home on that night nothing indicating the cause of his death was shown. We think the evidence produced failed to make a prima facie showing that the death of Rodgers resulted from the negligence of the defendant. Negligence can not be rested upon mere presumption, nor can a finding of negligence ever be made without evidence. No one is required to pay damages until it has been shown that he is in fault. In the absence of evidence the presumption is that the defendant is free from negligence. (Mo. P. Rly. Co. v. Haley, Adm’r, &c., 25 Kan. 35; Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12; Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251.) In this case it was not enough to prove that Rodgers' was found lifeless upon the track of the defendant’s railroad, nor even that there is a strong possibility that a train of the defendant ran over and killed him. It devolved on the plaintiff to show by competent evidence that he was killed by the action of the defendant; that the company did something which should not have been done; or omitted.to do something in the discharge of its duty towards him which, under the circumstances, should have been done; and further, that his injury and death resulted from such failure of the defendant. These findings can not be made unless there is either direct or circumstantial evidence to prove the essential facts of negligence on the part of the defendant and that such negligence caused the deplorable death of Rodgers. Neither fact can be based upon mere possibilities or surmises, nor even upon circumstances which are merely consistent with such fact where they are open to different inferences. (Carruthers v. C. R. I. & P. Rly. Co., 55 Kan. 600, 40 Pac. 915; Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101.) Now, it has not been proven that Rodgers was a passenger on defendant’s train on the night of his death. He contemplated taking the train, but, as we have seen, no witness saw him board it, upon it, or leaving it. The plaintiff’s theory or inference is that he was a passenger; that he alighted from the train when he reached Manhattan, and as he walked alongside the train he slipped on the icy trough of the tank, fell under the train and was killed. A possibility suggested by the defendant is that he came to Manhattan on the Union Pacific Railroad, which has a longer line from Clifton to Manhattan, and in going to his home went upon the track of the defendant and was struck by one of defendant’s trains at the place where his body was found. This supposition, however, like others suggested in the case, is not founded on sufficient evidence. If we assume, as the trial court appears to have done, that he was in fact a passenger on one of defendant’s trains, the evidence is still lacking as to how his death occurred and whether the defendant neglected any duty which it owed to him. It might be supposed, as plaintiff has done, that he alighted from the train at the station, and as he walked west along the side of the train, while it was in motion, he lost his footing on the ice and was thrown under the train. Other surmises may be made as suggested in the argument. He may have undertaken to drop from the train before it had stopped at the station, in an attempt to shorten his journey home, and have fallen under the wheels. Whether he was traveling east towards the platform, or whether he alighted on the platform and was traveling west, can not be determined from any evidence in the case. ' If it be assumed that he did not attempt to leave the train until it stopped and that he alighted on the platform, another theory is suggested, that after the train had passed he started west and across the track on his way home and was struck by a second train of the defendant. This, too, is conjectural. Another suggestion made by the defendant is that, as he sometimes had fainting spells, he may have fallen on the track and was dead when a train ran over him. There may be more probability in some of the suggested theories than in others, but all of them are mere conjectures without a sufficient basis to warrant the inference that the defendant was guilty of negligence which occasioned the fatal accident. The case falls fairly within a number of former decisions in which it was held that there was not sufficient proof of culpable negligence or liability. In Railway Co. v. Young, 57 Kan. 168, 45 Pac. 580, a child who was playing near a track had his hand cut off by a moving train. In an action by his parents it was contended that the railway company had failed to have a proper lookout, or to take necessary precautions for the safety of the boy and other children who were playing near the track. No one saw the accident in that instance. Upon the assumption that the railroad company should have had a lookout on the moving cars, it was said: “It is not enough that the company may have failed to take necessary precautions in moving the train, but before there can be a recovery it must show that the boy was hurt in consequence of such failure. How he was hurt and whether due care would have avoided the casualty rest upon conjecture rather than upon established facts, and we conclude that the testimony is insufficient to support the verdict, and that a new trial should have been granted.” (p. 171.) In Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101, a passenger in good health and accustomed to traveling on railroads appears to have fallen from the train, as his mangled and lifeless body was found on the side of the track the day after he was seen on the train, near a station on defendant’s railroad. It was a vestibuled train, and the custom was to keep the doors closed between stations. The plaintiff insisted that as deceased was in possession of his faculties, it could not be inferred that he committed suicide or failed to take proper care of himself, and that the only way to account for his death was the negligence of the railway company. It was said that the passenger may have been too warm and opened a vestibule in order to get fresh air, but it was added that this was speculation, and the finding of negligence without testimony as to how the door was opened and how the accident occurred could not be sustained. Some of the features of the case of Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001, are similar to those of the present one. A person who had been riding on a passenger train was found dead about three hundred feet from a station of the railroad company. His dead body was found on the side of the track and his dissevered legs between the rails. It was a vestibuled train and it was supposed that he or some one else had opened the vestibule before the train arrived at the station. ■ Although, indulging the presumption that the deceased was in the possession of his usual faculties; and in the exercise of due care for his own safety, it was decided that in the absence of evidence as’ to who had opened the vestibule or how the deceased happened to fall under the train, a finding that his death occurred through the fault of the railroad company was not justified. It is insisted that the watering of locomotives through a water tank is not the best method, but that it can better be done through a crane, thereby avoiding accumulations of water or ice near the track. It may be that the presence of ice at that place was a lack of due care as to some persons, but since it is not shown that the ice near the track was the proximate cause of the accident, which may have resulted from other causes, it is unneccessary to consider whether the use of a tank instead of a crane was negligence. The plaintiff alleged that the accident and death were the proximate results of the defendant’s negligence. It devolved upon her to produce' evidence accounting for the accident and death of Rodgers; also that there was a breach of the company’s duty towards him, and that his death was due to its fault. Unless substantial proof of these elements is produced, the plaintiff can not recover. If it be assumed that Rodgers was a passenger on defendant’s train, it must still be presumed that he alighted with care and did not undertake to leave the train before it had stopped, and fell between the wheels when trying to alight. And then it must be presumed that' he undertook to walk towards or away from the station over the icy place near the track while that train or another one was passing the station, and without any want of care on his part. That would be building one presumption upon another — a process which does not afford a basis for an inference of negligence. (Duncan v. Railway Co., 82 Kan. 230, 108 Pac. 101; Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356; Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251.) We may give full force to the presumption of care on the part of Rodgers, but this presumption furnishes no basis for inferring negligence on the part of the defendant. Until proof to the contrary is introduced, the defendant is entitled to the presumption that it was exercising care and performing its duty toward the deceased. (Looney v. Metropolitan Railroad Co., 200 U. S. 480, 26 Sup. Ct. Rep. 303, 50 L. Ed. 564.) Inference of negligence may be based on circumstances, but the circumstances must be drawn from premises that are reasonably certain and point clearly to the negligence asserted. In this respect the testimony of the plaintiff fails. As was said in Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83: “The accident may be accounted for in several ways, and other and more plausible theories of the collision may be suggested; but liability can not be fixed on a bare guess, nor can a verdict rest on mere conjecture.” (p. 298.) Being satisfied that the evidence does not establish prima facie that the defendant was guilty of negligence and that the casualty was the result of its negligence, the judgment of the trial court is affirmed.	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The opinion of the court was delivered by Porter, J.:' The action in the district court was to recover damages resulting from the delay in the transportation of cattle shipped from Akron, Kan., to Kansas City, Mo., and also for personal injuries to plaintiff while traveling with the stock on a shipper’s pass and alleged to have been caused by negligence of the defendant. A trial resulted in* a verdict and judgment in plaintiff’s favor, from which the defendant appeals. The answér alleged that the shipment was in accordance with the provisions of a written contract, a copy of which was attached to the answer, under the terms of which it was agreed that no action should be maintained by the plaintiff to recover any damages arising out of the shipment unless commenced within six months after the loss or damage occurred, and it was alleged that the action was not brought until eight months after the loss and injuries complained of. The only question involved in the appeal is whether the contract is, as alleged in plaintiff’s reply, void in toto because it violates section 20 of the commerce act, approved June 29, 1906, known as the Car-mack amendment. The trial court instructed the jury that the contract is void because of certain provisions therein whereby the defendant sought to limit its liability in violation of the federal law, and therefore instructed that the failure to bring the action within six months would not defeat the plaintiff’s right to recover. The plaintiff concedes- that at the time the contract was entered into the provision requiring the action to be brought within six months was not in violation of thé interstate commerce law as it then read, and that in consideration of the reduced rate of carriage it was lawful at that time to agree upon a reasonable time within which the action should be brought; but the plaintiff’s contention is that because the contract contains other provisions which are contrary to public policy, and which violate section 20 of the commerce act, the contract is wholly void; that the contract in an entire one and can not be divided as to the consideration. This was the view held by the trial court. Section 20 of the commerce act, approved June 29, 1906, reads as follows: “That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed; Provided, That nothing in this • section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” (Part 1, 34 U. S. Stat. at Large, ch. 3591, p. 595.) The shipment here was interstate, and the contract was, of course controlled by the foregoing section of the federal act, which supersedes all regulations and policies of the state on similar matters. (Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. Rep. 148.) In that case, as well as in Kansas Southern Ry. v. Carl, 227 U. S. 639, 33 Sup. Ct. Rep. 391, the supreme court of the United States has said that this provision is a statutory declaration that a contract for exemption from liability for loss occasioned by the negligence of the carrier is against public policy and void. The contract in the present case commences with the statement that the rate named in the contract is lower than that made by the railroad company for the transportation of stock at carrier’s risk and without limitation of liability, and is based upon the conditions and agreements found in the contract and upon the valuations therein fixed. It contains a recital that the company agrees to transport for the shipper “in consideration of the foregoing and of the mutual covenants and conditions hereinafter contained.” The contract is made up of a large number of separate clauses. In one of these the shipper agrees to hold the company not liable for any damage to stock on account of any defects in the cars which are not reported to the agent of the company in writing by the shipper. In another clause the shipper agrees that where the company shall furnish laborers to assist in the loading and unloading of stock it is understood that they are furnished for the accommodation of the shipper and shall be deemed the employees of the shipper while so engaged, and the company will in no wise be liable for their negligence. In the sixth numbered clause of the contract the shipper assumes and releases the company from risk of loss, injuries and delays caused by “any mob, strike, threatened or actual violence to real or personal property, or by the refusal of the company’s employes to work or otherwise, or by failure of machinery, engines or cars, or injury to tracks or yards, storms, washouts, escape or robbery of any of said stock, overloading cars, fright to animals, or crowding one upon another, or from any and all other causes whatever.” On the back of the shipping contract and as part of it the shipper or person in charge of the stock, in consideration of the free pass granted him, agrees that the company shall not-be liable for any injury or damage sustained by him while in charge of the stock or on his return passage. The contract is the usual shipping contract, which has frequently been before this court in actions involving the validity of some particular clause thereof, and is apparently the form, in general use by common carriers. The question here involved has never before been suggested in this court. We have not been referred to any cases where the federal courts in passing upon the provisions of section 20 of the commerce act, known as the Carmack amendment, have had the precise question before it. The authorities upon which plaintiff mainly relies, aside from the decisions holding that certain of the provisions in this contract are void as against public policy, are cases which declare the doctrine announced in Peckham v. Lane, 81 Kan. 489, 106 Pac. 464, where a contract was held to be invalid on the grounds of public policy, there being no statute law prohibiting the act which furnished the consideration, nor any penalty fixed by law. In that case the substantial consideration for the conveyance of certain land to Peckham was the location of a station upon lands of defendant. The selection of the site for the station was an act committed to Peckham in his capacity as an officer of the corporation. It was held that the contract showed on its face that Peckham sought to derive a personal benefit from an act performed by him in behalf of the company in which he was bound to be guided only by regard for its welfare, and that because all contracts which tend to place officers under an inducement to disregard their duties to the corporation and to decide questions from a standpoint other than that of the company’s good are void on grounds of public policy, therefore Peckham could maintain no action upon the contract. In this class of cases the contract is held to be against public policy on moral considerations, and as was said in the opinion, “the authorities are practically unanimous” in holding that such a contract constitutes a fraud or breach of trust on the part of the person who stands in a fiduciary relation to others. We think it is quite evident that the reasons for holding contracts of this character unenforceable can not be said to apply to the contract in the present case. Another line of authorities relied upon is illustrated by the recent case of Ridgway v. Wetterhold, 96 Kan. 736, 153 Pac. 490. The contract there was to convey an interest in a patent right, the vendor having failed to comply with the provisions of a statute forbidding sales of any interest in a patent right unless the letters patent had first been filed for record in the county where the transaction took place. The statute declared the contract unlawful, and in addition made the owner liable to fine and imprisonment for violation of the statute. The contract was held not divisible, but entire, and being void by statute, no action to enforce any part of it could be maintained. The contract in the present case contains a number of provisions which on their face are void. It is unnecessary to consider the reasons why they are unenforceable because they are only indirectly involved in this controversy. As to some of them, .at least, it is not and can not be seriously contended that they are valid. It will be observed that congress has not so far declared it to be a misdemeanor for the carrier to attempt to limit its liability by including in the shipping contract provisions contrary to the terms of the statute. If the statute were construed liberally it might be said even to contemplate the probability that carriers will in some instances issue receipts and formulate rules and regulations seeking to avoid the liability imposed by section 20. The statute merely declares that “no contract, receipt, rule, or regulation” shall relieve' or exempt the carrier “from the liability hereby imposed.” There is the further provision “that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” It appears from the abstract that the defendant has filed with the interstate commerce commission its two rates for the shipment of live stock and its form of contract where, as in this case, the stock is shipped on the lower of two rates. The common law at first made the common carrier an insurer as to freight, and recognized but two exceptions — loss occasioned by the act of God, or of the public enemy. (Angell on The Law of Carriers, §§ 67, 135, 148; Hale v. New Jersey Steam Navigation Company, 15 Conn. 539, 39 Am. Dec. 398.) In the gradual development of the law in relation to carriers the courts in furtherance of justice found it necessary to add other exceptions, and so where the loss was caused by some act of the shipper the carrier was relieved of liability. (Hart v. The Chicago & N. W. Ry. Co., 69 Iowa, 485, 29 N. W. 597.) Likewise the courts. found it necessary to engraft other exceptions, and declared that where the loss was occasioned by act of the public authorities the carrier should not be held, and that where the injuries or loss resulted from the inherent defects or essential qualities of the articles or merchandise the carrier should be relieved from liability. (Evans v. Fitchburg Railroad Company, 111 Mass. 142, 15 Am. Rep. 19.) It finally came to be held by the courts generally that the carrier may limit its liability to a certain extent by special contract, but these contracts being in derogation of common law have always been strictly construed and never enforced unless shown to be reasonable. (Hinkle v. Railway Co., 126 N. Car. 932, 36 S. E. 348, 78 Am. St. Rep. 685.) Other exceptions were allowed where the strict common-law rule would work great hardships on the carrier, such, for instance, as where goods of great value, or subject to extra risk, were delivered to the carrier without notice of their character and contrary to published notices requiring shippers to inform the carrier of the extrahazardous nature or value of the goods. A very important modification in recent years is that the carrier is permitted by special contract to limit the amount of damages for which it shall be liable in consideration of accepting the goods at the lower of two published rates of which the shipper is given the choice, but the amount of damages must be reasonable. (Christl v. Railway Co., 92 Kan. 580, 141 Pac. 587; Kirby v. Railroad Co., 94 Kan. 485, 146 Pac. 1183.) We have a statute which declares that “no railroad company shall be permitted, except as otherwise provided by regulation . or order of the board [Public Utilities Commission], to change or limit its common-law liability as a common carrier.” (Gen. Stat. 1909, § 7216.) Construing a similar provision in the old law of 1883, the opinion in Railway Co. v. Sherlock, 59 Kan. 23, 51 Pac. 899, said: “The question whether upon common-law principles a common carrier may stipulate with the shipper for exemption from its common-law lia bilities is a vexatious and confusing subject of controversy in the courts. By some it is held that the public nature of the business of carrying imposes upon those who assume the conduct of such business, the obligations named, from which they can relieve themselves by no act of their own; that such obligations are conditions annexed to the office, from which the carrier can be exempted only by legislative enactment. Other and perhaps a greater number of cases hold that, while the law will not permit the carrier to contract for immunity from the consequences of its own negligence, it will allow it to agree with the shipper upon the extent of its liability in case of loss by the acts of others or by its own nonnegligent accidents; and still others hold that, while it may not stipulate for total exemption from liability for its own negligence, it may, nevertheless, as in the case of the insurance feature of its obligation, agree upon the extent of its liability in case of loss or injury through its own negligence. . . . What the common law in question really is, has been a subject of contrary opinion in this state. Express Co. v. Foley, 46 Kan. 457-472, 26 Pac. 665.” (p. 27.) The fact that the law respecting the right of common carriers of goods to limit by special contract the nature and extent of their liability for loss of this kind has so long remained in a state of comparative uncertainty, subject more or less to change and development by judicial interpretation, furnishes some excuse for the prevailing custom of the carriers to continue to issue bills of lading and shipping contracts containing provisions whereby the carriers seek to limit their liability in respect to matters where the question of their power so to do is involved in doubt. It is obvious, however, from a consideration of the terms and complex provisions of the bill of lading in question that the form of the contract needs drastic revision, eliminating therefrom numerous stipulations and provisions by which the carrier attempts to limit its liability for injuries and loss occasioned by its own negligence and that of its servants — provisions which have long been held by courts everywhere as having no force or virtue because contrary to public policy, conditions and terms which have no binding effect upon the shipper and which are never seriously relied upon .by the carrier as defenses. Section 20 of the commerce act has been in force since 1906. Congress has made elaborate provision for the regulation of interstate carriers by the interstate commerce commission, but it has so far not seen fit to prohibit in express terms the issuing of contracts containing these objectionable conditions. Meanwhile, the interstate commerce commission has permitted the railways to file with it and publish tariffs based upon a form of contract identical with the one in question. The federal courts and this court have repeatedly upheld the validity of the provision requiring that no action to recover damages to live stock, sustained during transportation shall be maintained unless the shipper give notice in writing to the carrier before the stock has mingled with other stock, and unless the action is commenced within a stipulated reasonable time after the loss or injury occurs. (Nursery Co. v. Nursery Co., 89 Kan. 522, 132 Pac. 149; Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847; Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600; Christl v. Railway Co., 92 Kan. 580, 141 Pac. 586; Kirby v. Railroad Co., 94 Kan. 485, 146 Pac. 1183; Broadhead v. Railway Co., ante, p. 222, 155 Pac. 20; Adams Express Co. v. Croninger, 226 U. S. 491, 33 Sup. Ct. Rep. 148; Kansas Southern Ry. v. Carl, 227 U. S. 639, 33 Sup. Ct. Rep. 391.) In other words, the federal and state courts as well as the interstate commerce commission have apparently construed the contract in question not as an entire, but as a divisible one, and the provisions as to notice and the time within which actions may be brought as conditions precedent to the right to maintain the action. Up to this time sound public policy in respect to interstate carriers has been more concerned in securing uniformity in the rights and privileges granted to shippers, interstate and intrastate, than in guarding against attempts by carriers to secure unfair advantages by including in their shipping contracts provisions that are unenforceable. The courts in recent years have quite uniformly ignored these unlawful provisions and the public has not suffered. The tendency of legislative thought and of public policy is more and more toward uniform bills of lading, and doubtless when congress or the interstate commerce commission prescribes a form of special contract for shipments of live stock all unlawful-and objectionable provisions will be eliminated. It is against public policy to permit a common carrier to escape liability for loss and injury occasioned by its negligence, and for that reason certain provisions in the contract in question are void; but this is the extent to which the decisions and authorities have gone. It is not necessarily con trary to any public policy so far declared by the courts generally or by congress for an interstate carrier to insert in its shipping contracts provisions which for reasons of public policy the courts will not enforce. Aside from plaintiff’s neglect to give certain notices of his loss as provided for in the contract, the failure to bring his action within six months after it accrued as provided in the ninth clause of the contract is fatal to his right to maintain the action (Watt v. Railway Co., 90 Kan. 466, 135 Pac. 600), and this applies to the cause of action for personal injuries as well as that for loss and injury to the live stock (Barber v. Railway Co., 86 Kan. 277, 120 Pac. 359; Koster v. Railway Co., 95 Kan. 109, 147 Pac. 798; Enright v. Railway Co., 96 Kan. 546, 152 Pac. 629). Plaintiff’s testimony that he did not know there were two rates for the transportation of live stock until after the loss occurred can not avail him. The published tariffs were notice to him. (Christl v. Railway Co., supra; Kansas Southern Ry. v. Carl, supra.) The shipping contract contained a statement that the agreement to carry the stock at the lower of the two rates was a part of the consideration. Plaintiff admitted that he had made one or two shipments of stock each year for several years and knew that he would be required to sign the contract; that the contract in this case was handed to him ten minutes before the train left. He was given a duplicate copy of the contract, which'he used to secure his return transportation. He can not now be heard to say that the shipment was not made upon the written contract.. (Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421; Barber v. Railway Co., supra.) The judgment is reversed with direction to enter judgment for defendant.	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The opinion of the court was delivered by Porter, J.: In this case the only question is, whether the justice court and the district court, where the case was appealed, had jurisdiction, and this depends upon, what sum the plaintiff sued for in the justice court. The bill of particulars alleged that defendant owed plaintiff $300 for failure to perform a written agreement; that demand had been made for that sum and defendant had refused to pay the'same. In the prayer for relief the plaintiff prayed judgment for $300 “together with interest thereon at the rate of six per cent, per annum from the 8th day of October, 1913, and for costs of suit.” The action was begun in a justice court on the 8th day of October, 1913, and the summons was personally served on the defendant the same day. On December 28> 1913, the court rendered judgment in plaintiff’s favor for $300 with interest from the date of the judgment and for costs. The defendant appealed to the district court and filed a motion to dismiss on the ground that the bill of particulars demanded judgment for more than $300 and that neither the justice court nor the district court had jurisdiction of the cause. There is a statement in the abstract that the same application was made and denied in the justice court. This is challenged in the counter-abstract. The district court overruled the motion to dismiss, and on the trial of the case judgment was rendered against the defendant for $300 and costs. It is stated in the bill of particulars that the defendant is owing, the plaintiff the sum of $300, and unless the prayer for relief is considered a controlling part of the statement of the cause of action it is clear that the plaintiff claimed no more. The mandate in the code of civil procedure which requires that “its provisions, and all proceedings under it, shall be liberally construed, with a view to promote its object, and assist the parties in obtaining justice” (§2), applies to actions before justices where formal pleadings are not necessary. (Wooster v. McKinley, 1 Kan. 317.) It would be quite technical to hold that when the action was commenced the plaintiff claimed there was more than $300 due. In Smith v. Kimball, 36 Kan. 474, 13 Pac. 801, it was said: “However strongly a pleader may be bound, and however much he may be estopped by the averments of facts in the body of his pleadings, it is doubtful whether he is bound or estopped by his prayer for relief. He is supposed to know the facts upon which he predicates his action, and to state them as he understands them, but the relief to which he is entitled on the facts related is a question for the court, and over which he has no control.” (p. 492.) A per curiam opinion in Smith v. Smith, 67 Kan. 841, 73 Pac. 56, contains the following inaccurate statement: “It is well settled in this state that the prayer of the petition forms no part of it, and that relief may be granted in accordance with the facts stated in the petition rather than pursuant to its prayer.” The prayer for relief is a part of the petition or bill of particulars, and a necessary part. In enumerating what the petition must contain, the language of section 92 of the code is, “Third, a demand of the relief to which the party supposes himself entitled.” While the prayer is a necessary part of the petition, it is not a partjof the statement of the cause of action. A pleader may suppose himself entitled to other and different relief than the facts stating his cause of action warrant, and may ask for such relief, but in determining the question of the jurisdiction of the court it is the cause of action stated, and not the relief prayed for, which controls. The statement in the opinion in Smith v. Smith, supra, that “It is well settled in this state that the prayer of the petition forms no part of it,” was not necessary to the decision in that case, was obiter, and should be overruled. The case at bar is controlled by the decision in Parker v. Dobson, 78 Kan. 62, 96 Pac. 472, the second paragraph of the syllabus of which reads: “If in an action before a justice of the peace upon a promissory note the amount claimed in the bill of particulars do not exceed $300, the justice, or the district court upon appeal, may adjudicate'the controversy, although the interest accruing before final judgment increase the amount due to more than $300; but whatever the balance found due may be the judgment can not exceed $300.” (Syl. ¶ 2.) The plaintiff elected to accept judgment for the amount within the jurisdiction of the court. The action was to recover no more than $300, and therefore the judgment is affirmed.	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The opinion of the court was delivered by Davis, J.: The Legislative Coordinating Council (LCC) brought this original action in mandamus against respondents Sheila Frahm, Secretary of Department of Administration, and Shirley Moses, the Director of Accounts and Reports because Moses refused to pay LCC vouchers for court costs and attorney fees in curred in an election contest action. The director determined that the expenditures were unlawful. We do not reach the merits of the question and dismiss based upon our conclusion that the LCC had no authority or standing to bring this action. The parties have submitted this case upon the following stipulated facts: “1. On December 21,1994, Joe Shriver was declared the winner of the election for 79th District State Representative over Danny Jones by then Kansas Secretary of State, Bill Graves. “2. Jones filed suit contesting the elections and on January 6,1995, the Cowley County District Court determined the election to be a tie vote and under K.S.A. 25-1452 waived the costs of the contest and held, in part: ‘3. In the interests of justice, the costs of this contest are hereby waived and should therefore be paid by the State of Kansas in a special appropriation made therefore, pursuant to K.S.A. 25-1452. It is the specific recommendation of this court that the costs of this case include a reasonable sum for attorney fees for both the parties.’ “3. On January 30,1995, Speaker Shallenburger appointed a select committee of six members of the Kansas House of Representatives to hear the matter and report to the full House pursuant to K.S.A. 25-1451(b). “4. On February 9,1995, the select committee reported to the membership of the House that the contested election had resulted in a tie vote between Jones and Shriver. The committee recommended that the outcome of the election should be decided by lot. The report of the select committee did not mention payment of court costs or attorneys’ fees in this matter. “5. On February 10, 1995, the Speaker announced that by mutual agreement of the candidates and concurrence of the leadership of the Republican and Democratic parties in the House, the election for the Office of Representative of the 79th District would be determined by drawing lots. The announcement, as stated in the Journal of the House, did not mention payment of court costs or attorneys’ fees in this matter. Jones won the drawing and was seated. “6. During the 1995 legislative session, both Senate Bill No. 95 and House Bill No. 2085 contained appropriations provisions for Legislative expenses. HB 2085 did not mention specifically payment of court costs or attorneys’ fees in this matter. SB 95 was amended by motion of the House Minority Leader to specifically appropriate money to pay Jones’ and Shiiver’s attorneys’ fees. The day after SB 95 was so amended the full House adopted the conference committee report on HB 2085. HB 2085, which included appropriations for legislative operational costs, became law on July 1, 1995. “7. On motion of Senator Bogina to non-concur to the House amendments to SB 95, a conference committee was appointed. Senators Bogina, Emert and Rock, as well as Representatives Jennison, Carmody and Helgerson met as the confer ence committee on SB 95. The conference committee agreed to disagree and SB 95 remained in conference committee during the 1995 legislative session. “8. On May 30, 1995, Speaker Pro Tern Susan Wagle requested an Attorney General’s Opinion asking whether either HB 2085 or its 1994 predecessor (1994 Kan. Sess. Laws Ch. 255) authorized the LCC to pay Jones’ and Shriver’s court costs and attorneys’ fees. On June 30, [1995], the Attorney General opined: ‘The costs incurred in the contest of an election in the seventy-ninth representative district may not be paid from appropriation set forth in L. 1994, ch. 255, § 3 or section 3 of 1995 house bill no. 2085.’ “9. On August 21,1995, Speaker Shallenburger pointed out to the Council that because 1995 Senate Bill No. 95 was not passed by the Legislature, the court costs, transcription expenses and attorneys’ fees in the contested election case of Jones v. Shriver, District Court of Cowley County, Kansas, had not been paid. Speaker Shallenburger moved that the court costs, transcription expenses and attorney fees as specified in 1995 Senate Bill No. 95, (as amended by House Committee of the Whole) be paid from the operations (including official hospitality) account of the Legislature. Representative Sawyer seconded the motion. In discussion, members of the Council considered the statute relating to payment of costs of contests of elections; that the district judge who heard the case ordered the costs of the election contest to be paid by the state and recommended that the costs of the case include a reasonable sum for attorney fees for both parties; an opinion of the Attorney General on the matter; the amount of the costs, including attorney fees, authorized for payment in 1995 Senate Bill No. 95 (as amended by House Committee of the Whole); and that 1995 Senate Bill No. 95 (as amended by House Committee of the Whole) authorized the payment of attorney fees in the matter from the operations (including official hospitality) account of the Legislature. The motion carried. Senator Moran voted against the motion. “10. On August 24, 1995,- the LCC submitted a payment voucher, V 428, to the Division of Accounts and Reports of the Department of Administration seeking payment of Danny Jones’ attorney fees in Jones v. Shriver to the law firm of Patterson, Nelson, Nolla & Witteman, L.C. in the amount of $19,054.15. “11. On August 24, 1995, the LCC submitted a payment voucher, V 427, to the Division of Accounts and Reports of the Department of Administration seeking payment of Danny Jones’ attorney fees in Jones v. Shriver to Eric Rucker, Attorney at Law, in the amount of $5,624.75. “12. On August 24, 1995, the LCC submitted a payment voucher, V 426, to the Division of Accounts and Reports of the Department of Administration seeking payment of Danny Jones’ attorney fees in Jones v. Shriver to Dale Sprague, Attorney at Law, in the amount of $321.10. “13. On August 24, 1995, the LCC submitted a payment voucher, V 424, to the Division of Accounts and Reports of the Department of Administration seeking payment of docket fee, witness fees and faxed copies in Jones v. Shriver to the District Court of Cowley County in the amount of $466.12. “14. On August 24, 1995, the LCC submitted a payment voucher, V 425, to the Division of Accounts and Reports of the Department of Administration seeking payment of Joe Shriver’s attorney fees in Jones v. Shriver to Victor Miller, Attorney at Law in the amount of $15,000. “15. On August 24, 1995, the LCC submitted a payment voucher, V 423, to the Division of Accounts and Reports of the Department of Administration seeking payment of transcription costs and fax costs in Jones v. Shriver to Deanne M. Johnson, CSR, in the amount of $1,164. “16. The Director of Accounts and Reports, upon receipt of the above mentioned vouchers, consulted with the Attorney General and afterwards refused to process the vouchers for payment. “17. On October 18, 1995, the LCC convened and reviewed a letter to the Director of Accounts and Reports from the Attorney General reaffirming the opinion expressed in Attorney General Opinion 95-66. The Council then carried a motion of Representative Snowbarger, seconded by Representative Wagle, to again direct the Director of Accounts and Reports to pay the court costs and attorney fees in the contested election case. Only Senator Moran voted against the motion. “18. October 20, 1995, Senator Rurke, Chairperson of the LCC, sent a letter to Sheila Frahm, then Secretary of Administration, discussing the Council’s views and conveying to the Secretary the motion adopted by the Council at its October 18, 1995, meeting. “19. October 20,1995, Respondent Moses wrote a letter to Emil Lutz, Director of Legislative Administrative Services, returning the vouchers unpaid, citing Kansas Attorney General Opinion 95-66 as the basis for denial of payment. “20. During the November 16,1995 LCC meeting, Representative Snowbarger inquired about the current status of the payment of court costs and attorney fees in the contested election case of Jones v. Shriver. Mr. Lutz indicated that the original vouchers were returned to him by the Department of Administration but, that based on the direction of the Legislative Coordinating Council at its October 18, 1995 meeting, he had again forwarded the vouchers to the Department of Administration, Division of Accounts and Reports. Mr. Lutz indicated that the vouchers had not been returned to him by the Department. “21. Also during the November 16,1995, LCC meeting, Representative Wagle inquired about the possibility of commencing a court action in mandamus to enforce the payment of the vouchers. Concerns were expressed that the time before the upcoming legislative session was not adequate to allow for a court action, since the matter could be resolved at the next legislative session. President Burke requested that a bill be prepared by the Revisor of Statutes Office which would address the issue of payment of court costs from money appropriated to the legislature in contested election cases which involve candidates for the state legislature. “22. On December 29, 1995, the LCC pre-filed House Rill 2609, an amendment to K.S.A. 25-1452, which would provide, in part; ‘The court, in the interests interest of justice may waive any costs assessed pursuant to this section in which case the costs shall be paid by the state from any appropriations therefor or, in a case of the contest of a state legislative election, from appropriations available of expenses of the legislature.’ “HB 2609 was introduced in the House on January 8,1996 and referred to the House Committee on Governmental Organization and Elections where it remained for the duration of the session. “23. On January 22, 1996, the LCC expressed concerns that the failure of Respondents to pay the vouchers ‘raised serious questions of the constitutional separation of powers between the legislative and executive branch of government’ and while the Legislature was in regular session directed the Revisor of Statutes to: ‘. . . represent the Legislative Coordinating Council and the Legislature as legal counsel in this matter, to bring the appropriate court action to secure the payment of attorney fees and court and transcription costs in the contested election case of Jones v. Shriver, and the Revisor of Statutes was directed to file the appropriate court action in this matter as legal counsel and to prosecute the action to conclusion.’ “24. On January 30, 1996, Senate Bill No. 561 was introduced by the Senate Committee on Elections, Congressional and Legislative Apportionment and Governmental Standards. Under Senate Bill No. 561, K.S.A. 25-1452 would be amended to read, in part: ‘The state shall not pay any costs nor pay any attorney fees of the contestant or contestee associated with any contest of election.’ “25. Senate Bill No. 561 passed the Senate by a vote of 34 to 5, but failed to be passed out of the House Committee on Governmental Organization and Elections, and was not enacted into law. “26. On January 25,1996, the House Committee on Appropriations introduced House Bill No, 2724, a major appropriations bill which includes reductions in fiscal year 1996 (FY 96) appropriations. In § 37 of House Bill No. 2724, as amended by both the House Appropriations Committee and the House Committee of the Whole, $40,000, the amount the LCC wants to pay Jones’ and Shriver’s attorneys, was removed from the FY 96 appropriation for legislative operations. House Bill No. 2724 was not enacted into law. “27. In the 1996 regular legislative session, the Senate Ways and Means Committee introduced Senate Bill No. 426 on January 9,1996. This bill also reduced the legislature’s FY 96 operating budget. In committee action, $41,630.21 was removed from the legislature’s FY 96 operating budget. Senate Bill No. 426 was not enacted into law.” The LCC is a creature of statute. Its authority and power to act on behalf of the legislature are clearly delineated by the legislature. Article 12, Chapter 46 of the Kansas Statutes Annotated deals with the creation, powers, function, and authority of the LCC. K.S.A. 46-1201(a) establishes the LCC with seven members: “Such members shall be the president of the senate, the speaker of the house of representatives, the speaker pro tem of the house of representatives, the majority leader of the senate, the majority leader of the house of representatives, the minority leader of the senate, and the minority leader of the house of representatives.” The threshold question we address involves the authority of the LCC to bring an action while the legislature is in session. It is undisputed that the petition for writ of mandamus filed by the Revisor of Statutes on behalf of the LCC was filed during the legislative session. The question, a legal one, is whether the LCC by statute has standing and authority to bring this action. The only statute in Chapter 12 expressly dealing with the powers of the LCC to direct the bringing of an action is K.S.A. 46-1224. While this statute primarily deals with the powers and standing in courts of the legislative counsel established in K.S.A. 46-1222, K.S.A. 46-1224 also describes the time when the LCC may direct legislative counsel to initiate legal action: “As directed by the legislative coordinating council, the legislative counsel shall represent the legislature, or either house thereof, in any cause or matter. In cases of quo warranto and mandamus the legislative counsel shall have the same powers and standing in all courts of this state as any county attorney or district attorney has in his or her county or in the supreme court and as the attorney general has in any court. When the legislature is in session, either house thereof by its resolution, or both houses by concurrent resolution may authorize the legislative coordinating council to direct the legislative counsel to bring or participate in any cause or action by representing the legislature or either house thereof or the legislative coordinating council in any court of this state or of the United States. When the legislature is not in session, the legislative coordinating council may direct the legislative counsel to bring or participate in any cause or action by representing the legislature or either house thereof or the legislative coordinating council in any court of this state or of the United States in accordance with directions of said council. . . . The legislative counsel shall perform such other duties as are directed by the legislative coordinating council.” (Emphasis added.) K.S.A- 46-1224 is not permissive but restricts the LCC’s authority to bring any action during the legislative session. When the legislature is in session, K.S.A. 46-1224 authorizes the LCC to par ticipate in directing the bringing of an action only by the resolution of either house, or both houses by concurrent resolution. The expressed legislative intent is that the LCC may not bring an action by representing the legislature or itself while the legislature is in session. The intent expressed in K.S.A. 46-1224 is consistent with the general powers and functions granted to the LCC in K.S.A. 46-1202. The two basic powers conferred by the legislature upon the LCC are general authority over all legislative services and representation of the legislature when the legislature is not in session: “The legislative coordinating council shall have general authority over all legislative services and such authority shall be exercised by such council as it shall determine, except as otherwise provided by chapter 46 of Kansas Statutes Annotated. The legislative coordinating council shall represent the legislature when the legislature is not in session. The legislative coordinating council may adopt and amend rules applicable to its affairs or to the meetings and activities of special committees, standing committees or advisory committees, except that such rules shall not apply to standing committees meeting while the legislature is in session. When the legislature is not in session, the legislative coordinating council shall govern the mechanics and procedure of all legislative committee work and activities, except that of the interstate cooperation commission, legislative post-audit committee, state finance council, and the ways and means of the senate and the committee on appropriations of the house of representatives when meeting under authority of K.S.Á. 46-134a and amendments thereto.” (Emphasis added.) K.S.A. 46-1202. In a comprehensive article in the 1971 Journal of the Kansas Bar Association then Senator Robert Bennett commented on the creation of the LCC that year by the Kansas Legislature: “[T]he old legislative council was dissolved and in its place a legislative coordinating council was created to generally supervise the work of interim committees. For many years now, opponents of the legislative council indicated that the work was not meaningful because in many instances it was not done by individuals serving on the committee to which any legislative proposal would be assigned during the legislative session. Under this act the legislative coordinating council can authorize the assignment of matters to various types of committees who in turn may meet on these matters during the interim and then are required to file .their report prior to the legislative session. The reports which are required under the act should be of great assistance in the interpretation and construction of legislation recommended by the various committees. Perhaps also the intensification of the interim committee system will allow for more thorough and detailed study and analysis of legislative proposals prior to their actual passage by the legislature itself.” Bennett, 1971 Legislative Synopsis, 40 J.B.A.K. 307,357 (1971). The entire thrust of Chapter 12 dealing with the creation and powers of the LCC suggests, as the empowering statute outlines, that the LCC represents the legislature when it is not in session. The action filed in this case is one in which the LCC is representing the legislature as a whole even though the vouchers in question emanate from the LCC. This is apparent from both the language used in the petition filed by the LCC and its resolution to bring the action. The resolution of the LCC directed the Revisor of Statutes to “ ‘represent the Legislative Coordinating Council and the Legislature as legal counsel in this matter, to bring the appropriate court action to secure the payment of attorney fees and court and transcription costs in the contested election case of Jones v. Shriver, and the Revisor of Statutes was directed to file the appropriate court action in this matter as legal counsel and to prosecute the action to conclusion.’ ” (Emphasis added.) The petition provides that the action was brought under the authority of Article 2, § 8 of the Kansas Constitution, which provides that each house of the legislature “shall be the judge of elections, returns and qualifications of its own members.” It is difficult to conceive of any situation wherein the LCC would be doing anything other than representing the legislature or one of its houses. Thus, while the LCC may have need of acting on its own behalf, ultimately its action in every case involves the representation of the interests of the legislature as a whole. The LCC advances three arguments in support of its position that neither K.S.A. 46-1202, empowering the LCC to represent the legislature “[wjhen the legislature is not in session,” nor K.S.A. 46-1224, limiting the authority of the LCC to bring an action while the legislature is in session, governs this case. First, the LCC points out that it is represented by the Revisor of Statutes, not legislative counsel. The LCC contends that it has independent authority to appoint the office of the Revisor of Statutes as its legal representative and that this power does not change while the legislature is in session. The LCC asserts that it properly obtained representation for the present action from the Revisor of Statutes. K.S.A. 46-1211(a) states: “There is hereby established the office of revisor of statutes whose head shall be the revisor of statutes and who shall be appointed by the legislative coordinating council to serve under its direction.” K.S.A. 46-1211(b) lists the duties of the Revisor of Statutes: “The office of revisor of statutes shall perform the following functions: Drafting of bills, resolutions and other legislative documents; legal consultation for members of the legislature and legislative committees; legal research; supervise revisions and compilations of the general laws of this state; prepare and publish Kansas Statutes Annotated, Supplements thereto and publication of additional and replacement volumes thereof; recommend to the standing judiciary committees or to other appropriate legislative committees such bills as will tend to update or clarify existing laws; other duties as provided by law; and such other legal duties as are directed by the legislative coordinating council.” (Emphasis added.) This statute does not expressly provide the Revisor of Statutes with the power to represent the LCC in an action. However, the LCC asserts that the final catch-all phrase includes representation if needed. The LCC notes that diere is no statutory time period within which the LCC may direct the Revisor of Statutes to bring an action, unlike an action brought by the legislative counsel pursuant to K.S.A. 46-1224. The LCC therefore argues that this case was properly brought to this court. In response to the LCC’s argument regarding its complete authority to appoint the Revisor of Statutes as legal counsel, the respondents present a statutory interpretation argument. Respondents argue that the provisions of K.S.A. 46-1224, limiting the LCC’s authority during the legislative session, are specific and control the general provisions of K.S.A. 46-1211. Therefore, respondents conclude that the LCC’s authority with regard to the office of the Revisor of Statutes is also limited during the legislative session. We agree. Secondly, the LCC relies on the provision of K.S.A. 1996 Supp. 46-1204, under which the LCC is expressly granted the authority to contract with attorneys other than the legislative counsel. This statute provides: “The legislative coordinating council shall be authorized to contract for purchases of personal property or services, and in the discretion of such council, the same maybe made as provided in K.S.A. 75-3739 and amendments thereto. Such council may delegate such authority to make or contract for such purchases or services, except professional services, the director of legislative administrative services. No member or committee of the legislature, except the legislative coordinating council, shall be authorized to employ or contract for professional services to be paid from appropriations for legislative expense or from appropriations to the legislative coordinating council. The legislative coordinating council may employ by contract and direct one or more attorneys, who are approved by a vote of 3U of the members of the legislative coordinating council, to represent the legislature, either house thereof, the legislative coordinating council, any legislator, any officer or employee of the legislative branch or any combination of the foregoing and any such attorney shall be paid from appropriations for legislative expense. No contract made under authority of this section shall require approval under any other statute.” (Emphasis added.) K.S.A. 1996 Supp. 46-1204. The above statute establishes that both the legislature and the LCC can be represented by attorneys other than the legislative counsel. The legislature has granted the LCC authority to hire an attorney without express direction from the legislature. Moreover, the LCC points out that K.S.A. 1996 Supp. 46-1204 does not limit its authority to the period when the legislature is not in session. In answer to both arguments, we do not believe that the authority and standing of the LCC to bring an action while the legislature is in session depend upon whom it employs as cohnsel. K.S.A. 46-1224 expresses a clear limitation upon the authority of the LCC to bring an action while the legislature is in session. To say that the two above-quoted statutes which authorize the LCC to employ the Revisor of Statutes or contract with attorneys thereby empower the LCC to bring an action while the legislature is in session is to render the provisions of K.S.A. 42-1224 meaningless. We are not at liberty to ignore the expressed legislative intent in K.S.A. 46-1224. “ Tn order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). When K.S.A. 46-1224 is read in conjunction with K.S.A. 46-1202, which empowers the LCC to represent the legislature when it is not in session, the intent to limit the power of the LCC is clear. The legislature has reserved unto itself the authority to bring an action when it is in session. Finally, the LCC argues that as representative of the legislature while the legislature is not in session, K.S.A. 46-1202, it is the proper parly to bring an action regarding a dispute that arose during the interim period. The LCC contends that its standing is appropriate because the vouchers at issue were issued by the LCC. The LCC argues that it has the responsibility to complete the task it began during the interim period. The argument advanced makes sense but for the fact that the legislature has reserved unto itself the authority to bring an action when it is in session. K.S.A. 46-1224. Absent clear statutory authority, the LCC had no standing to bring an action when it did. The LCC argues that it has acted as legal representative for the legislature in the past and cites several cases in which it was involved to illustrate its participation in legal matters. The cases cited are inconclusive with regard to the LCC’s authority to bring an action. First, the LCC was never the plaintiff in any of those cases. Second, as the LCC admits, it was usually represented by the legislative counsel. Third; the LCC did not intervene but simply filed amici curiae briefs in three of the seven cases. Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982); State ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976); Brown v. Wichita State University, 219 Kan. 2, 547 P.2d 1015 (1976). Fourth, in In re House Bill No. 3083, 251 Kan. 595, 833 P.2d 1017 (1992), the LCC simply filed written statements, along with many other interested parties, regarding reapportionment legislation at issue. Finally, none of the cases specify whether the LCC acted under a resolution by the legislature. Finally, we believe that Chapter 12 draws a distinction between bringing an action and providing representation in connection with express legislative concerns and duties. K.S.A. 46-1224 is the only statute that expressly discusses the legislature’s and/or the LCC’s directing the bringing of an action. K.S.A. 1996 Supp. 46-1204 only speaks of “representation.” While the term representation would normally include the bringing of an action, our consideration of Chapter 12 as a whole and the clear language used in K.S.A. 46-1224 support a conclusion that representation does not include the authority to bring an action while the legislature is in session. We conclude that the LCC acted beyond the scope of authority granted it by the legislature and had no standing to bring an original action in mandamus when the legislature was in session. Accordingly, we dismiss the action filed. Petition dismissed.	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The opinion of the court was delivered by Davis, J.: This is the second appeal involving punitive damages awarded to the estate of Glen C. Smith, deceased, brought by the administrator, plaintiff Bany L. Smith, et al. (Smith). In Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993), we remanded this case with instructions. This appeal basically involves two questions: (1) whether reversible error occurred during the remand proceeding to determine if defendant Southwest Movers, Inc., (Southwest) authorized or ratified the wanton conduct of its employee, defendant Albert Printup; and (2) whether the trial court erred in reas sessing punitive damages against defendants American Red Ball Transit Company, Inc., (Red Ball) and Printup. We conclude that no reversible error occurred and affirm. The facts giving rise to the underlying claims in this action are set forth in Smith v. Printup: “Near midnight on September 15,1987, defendant Albert Printup was driving a moving van southeast in the right lane on the Kansas Turnpike near the Andover exit. He lost control of the van, jackknifed, crossed the median, and collided with a pickup truck operated by Carolyn S. Elliott. Glen C. Smith was a passenger in the pickup driven by Ms. Elliott. As a result of the collision, Ms. Elliott died instantly. Mr. Smith suffered massive chest and other severe injuries but had a pulse and was breathing and groaning after impact. He died at the scene. Albert Printup survived. “Albert Printup was employed by Southwest Movers, Inc. (Southwest). He was paid a flat salary, with no bonuses for extra hours or miles. At the time of the accident, he had been ‘leased out’ to American Red Ball Transit Company, Inc., (Red Ball) for the last four to five years. He had not driven for anyone else during that period of time. Red Ball dispatched him, and he turned in his shipping documents and driving logs to Red Ball. He turned in his expense receipts to Southwest for reimbursement. “Plaintiffs sued Printup, Southwest, and Red Ball for wrongful death and, with respect to Mr. Smith, for pain and suffering. The court allowed the Smith plaintiffs to amend their complaint to seek punitive damages in accordance with K.S.A. 1992 Supp. 60-3703 against Southwest, Printup, and Red Ball in conjunction with their survivor action. The court ruled that punitive damages were not recoverable in the wrongful death actions. “From the very beginning, plaintiffs challenged the constitutionality of K.S.A. 1992 Supp. 60-3701. The trial court rejected this contention and found the statute to be constitutional. On summary judgment, the trial court rejected plaintiffs’ claim that they were entitled to punitive damages based on the allegation that Southwest and Red Ball negligently hired, retained, supervised, and trained Albert Printup. The court allowed Smith to present punitive damage claims against the corporate defendants, but, in accordance with K.S.A. 1992 Supp. 60-3701(d)(l), only to the extent that the corporate defendants authorized or ratified Printup’s conduct. The jury determined that punitive damages should be awarded against Printup and Red Ball, but not against Southwest. The court awarded punitive damages in the amount of $20,000 against Printup and $100,000 against Red Ball.” 254 Kan. at 318-19. Additional facts from our first opinion and new facts developed upon remand are set forth in the discussion of the alleged errors raised in this second appeal. In the first appeal, a majority of this court reached the following conclusions and remanded the case for further proceedings: “The judgment of the court is affirmed in the following particulars. K.S.A. 1992 Supp. 60-3701 is constitutional. Punitive damages are not available in a wrongful death action in Kansas. After the enactment of K.S.A. 1992 Supp. 60-3701 etseq., a plaintiff has no right to advance a separate claim for punitive damages against an employer or principal based upon negligent acts of the employer or principal in hiring, supervising, training, or retaining the employee/agent. “The court’s rulings regarding the admission of financial records to determine the amount of punitive damages are affirmed, and those rulings become the law of the case upon remand. Likewise, the court’s rulings regarding the admission of evidence of remedial conduct together with evidence of settlement negotiations are affirmed and become the law of the case upon remand. “The court’s holding that joint and several liability is not available under the provisions of K.S.A. 1992 Supp. 60-3701(b), (e), and (f) is affirmed. The court’s holding that treble damages under K.S.A. 66-176 are unavailable in this case is affirmed and becomes the law of the case upon remand. Finally, the court correctly determined that there was sufficient evidence to submit to the jury the plaintiffs’ claim of conscious pain and suffering on behalf of Smith and the issue of wantonness of Printup’s conduct. “The court erroneously excluded relevant evidence of authorization or ratification under the provisions of K.S.A. 1992 Supp. 60-3701(d)(l) that affected the substantial rights of the plaintiffs. The court also committed clear error by failing to instruct the jury on authorization under 60-3701(d)(l). Accordingly, the decision regarding punitive damages is reversed, and the case is remanded with the following directions: “(1) Upon remand, a jury will be required to determine, under the guidelines set forth in this opinion, whether punitive damages should be awarded against Southwest. “(2) The jury determination that punitive damages should be awarded against Red Ball and Printup is affirmed, and the jury shall not consider this issue. “(3) The court’s determination of the amount of punitive damages against Red Ball and Printup is reversed. “(4) After a jury has determined whether Southwest shall be assessed punitive damages, the court may be required to determine the amount, if any, of punitive damages to be awarded against Southwest consistent with this opinion. “(5) The court will be required to determine the amount of punitive damages to be assessed against Red Ball and Printup consistent with this opinion.” 254 Kan. at 359-60. Consistent with this court’s direction on remand, the issue of Southwest’s liability for punitive damages on the basis of authorization and ratification was tried to a jury. This trial resulted in a mistrial. Soon after the declaration of a mistrial, Smith moved to disqualify the judge on the grounds of bias and prejudice. This motion was denied. In the second retrial, the jury ruled in favor of Southwest. The trial court also conducted a hearing to redetermine the amount of Smith’s punitive damages against Red Ball and Printup consistent with our opinion in Smith v. Printup, 254 Kan. at 360. At the conclusion of this hearing, the court increased the punitive damage award against Printup from $20,000 to $20,800 and took the matter of the punitive damage award against Red Ball under advisement. Thereafter, the trial court awarded Smith $100,000 in punitive damages against Red Ball, the same amount awarded in Smith v. Printup, 254 Kan. at 319. ISSUES ON APPEAL Smith claims that the trial court refused to follow the directions of this court upon remand (1) by refusing to admit certain evidence on the issue of whether Southwest authorized or ratified Printup’s conduct; (2) by assessing the same amount of punitive damages upon remand against Red Ball that were awarded in the first trial; and (3) by assessing the amount of punitive damages against Print-up under the provisions of K.S.A. 60-3701(e) instead of K.S.A. 60-3701(f). Smith also contends that the court erred in not granting his motion to disqualify the trial judge. Red Ball cross-appealed in the event that we remand again for reassessment of its punitive damages. Since we do not remand, we need not address Red Ball’s cross-appeal. 1. Admission of Evidence on Whether Southwest Movers Authorized or Ratified Printup’s Conduct In Smith v. Printup, we remanded for a jury determination whether punitive damages should be awarded against Southwest. We did so on the basis that: “[t]he court erroneously excluded relevant evidence of authorization or ratification under the provisions of K.S.A. 1992 Supp. 60-3701(d)(1) that affected the substantial rights of the plaintiffs.” 254 Kan. at 360. Smith advances four arguments in support of his contention that the trial court erroneously excluded evidence which demonstrated that the “questioned conduct [of Printup] was authorized or ratified by a person expressly empowered to do so on behalf of the . . . employer [Southwest].” K.S.A. 60-3701(d)(l). Smith argues (a) that the district court excluded relevant evidence in its ruling on Southwest’s motion in limine; (b) that despite the rulings made on the motion in limine, Southwest opened the door on the evidence previously excluded, thereby making such evidence admissible; (c) that the trial court improperly restricted the testimony of John Neal, an expert witness for Smith; and (d) that the trial court improperly restricted the questioning of Ron Davis, owner of Southwest. Standard of Review Before addressing the four arguments, we must first determine our standard of review. Smith’s arguments involve the admissibility of evidence at trial. The standard of review applied to questions involving the admissibility of evidence at trial is one of abuse of discretion. Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 626, 822 P.2d 591 (1991). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court. Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 804, 897 P.2d 123 (1995). Smith argues that the standard in this case should be a question of law because we have previously reviewed the matter and instructed the trial court what evidence should be admitted on retrial. However, this argument ignores our actual rulings regarding admissibility of evidence upon retrial. Far from identifying specific evidence that was to be admitted or excluded upon remand, this court defined the terms “authorization” and “ratification” contained in K.S.A. 60-3701, identified broad categories of relevant evidence that relate to authorization and ratification, and required for admissibility a causal connection between the evidence offered and accident. Smith v. Printup, 254 Kan. at 342, 344-46. Questions of admissibility upon retrial rested with the trial court. The standard applied during this appeal remains one of abuse of discretion. a. Evidence Excluded By Motion in Limine Smith argues that the trial court erred in granting the following portions of Southwest’s motion in limine: “Southwest . . . moves the Court for an order in advance of trial prohibiting the parties, their counsel, or any witnesses from mentioning in the presence of the juiy any of the following: “4 That Southwest Movers, including any of its employees, failed to properly inspect or maintain any of its vehicles, either before or after the accident giving rise to this lawsuit, including Southwest Movers’ vehicle involved in such accident. “6 That any drivers employed by Southwest Movers, other than defendant Albert Printup, either before or after the accident giving rise to this lawsuit, have been cited for any state, federal or company policy violations, or have been involved in any motor vehicle accident, or committed any act reflecting on their fitness to operate a motor vehicle. “12 Any line of questioning as to ‘what it took’ to stop what Albert Printup was doing in terms of his driving or logging . . . .” In Smith v. Printup, we concluded that falsification of maintenance records was not admissible: “The trial court did not err in excluding evidence that Printup falsified vehicle inspection reports because there was no evidence in the record that a mechanical problem caused or contributed to the accident. Officer Joy specifically testified that he did not find any mechanical defects in Printup’s truck that caused or contributed to the accident. . . . Absent any causal relationship between inadequate inspections and the accident, evidence of such violations is not relevant or admissible.” 254 Kan. at 346. While Smith sought to admit this evidence as a course of conduct contributing to Printup’s falsification of logs which resulted in his fatigue, the trial court found no causal connection and excluded the evidence. Based upon our earlier ruling and the reasons for exclusion upon remand, we find no abuse of discretion. We also directly addressed in Smith v. Printup evidence relating to other drivers for Southwest: “Evidence about other drivers’ conduct is not pertinent to ratification or authorization of Printup’s conduct unless the other drivers’ conduct is related to fatigue-causing conditions. The companies’ tolerance of false logs and hours of service violations is evidence from which the jury could infer that the companies were sending a message to Printup and other drivers that such conduct was acceptable. The jury could infer that the companies authorized or ratified such conduct. Similarly, the trial court erred in excluding evidence about Southwest’s recordkeeping practices to the extent the evidence pertained to driving logs or hours of service and thus driver fatigue.” Smith v. Printup, 254 Kan. 346-47. A determination of whether the falsification of logs and other legal violations by other Southwest drivers is related to fatigue-causing conditions depends upon the evidence. In support of his argument, Smith makes reference to the plaintiffs’ exhibits 43 & 45A. These exhibits are not included in the record on appeal. “ ‘Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.’ ” Smith v. Printup, 254 Kan. at 353. Smith contends that the trial court erroneously excluded evidence that Southwest failed to discipline Printup when it learned he had another accident in Carbondale, Illinois, while his logs showed he was off duty. The trial court also excluded evidence that Southwest took no disciplinary action to terminate Printup until after this accident. The trial court excluded this evidence primarily for lack of causation. In responding to the evidence relating to the Carbondale accident, the court said: “If the jury could find that fatigue due to hours of service caused or contributed to the accident, and evidence the company knew of Printup’s false logs and hours of service violations, it is relevant to the authorization.” There was no evidence to connect the event to this accident. We do not believe the exclusion was an abuse of discretion. b. Opening the Door Smith argues that Southwest’s opening statement and testimony from owner Ron Davis painted the picture that Southwest had no reason to violate the law and that it would not violate the law or permit its drivers to violate the law. Southwest responds that its opening statement and questions of Davis addressed only the issue of whether Southwest had knowledge of and approved of Printup’s recordkeeping practices and hours of service violations. While Smith’s argument presents a close question, we are not prepared to say that the trial court abused its discretion by adhering to its earlier ruling excluding this same evidence upon Southwest’s motion in limine. We are not able to say that the exclusion was arbitrary, fanciful, or unreasonable. c. Plaintiff’s Expert Testimony Smith alleges that the trial court impermissibly restricted the testimony of his expert witness, John Neal. Neal was qualified as a consultant to attorneys on heavy truck and bus accident cases. His testimony covers almost 100 pages of the record. His qualifications, as recounted before the jury, related to large trucking and busing concerns. After much discussion between counsel and the court outside the presence of the jury, the trial court sustained Southwest’s objections to opinion evidence by Neal. The court ruled: “The questions precipitated voir dire of the witness and so on had to do and started out with whether Mr. Neal was familiar with the standards of practice with respect to a company the size of Southwest Movers. In other words, mom and pop or mother and son business as to how they handled these things. Mr. Neal’s experience has been purely with a large company, he has no experience to render an opinion about how Southwest Movers should have acted according to the industry standard of a company similar in size who operates on an agency agreement.” After this ruling, Smith attempted to advance Neal’s additional qualifications to testily about smaller companies. The court responded: “Just a minute now. We went through voir dire to qualify this witness as to the safety practices of the company the size of Southwest Movers. I made a ruling. No request was made for additional evidence to qualify the witness, and you cannot now qualify him on this matter.” “The qualifications of an expert witness and the admissibility of his testimony are within the sound discretion of the trial court.” Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 259, 815 P.2d 550 (1991). We do not believe that an abuse of discretion has been established with regard to the exclusion of the above evidence. d. The Trial Court’s Restriction of the Plaintiff’s Questioning of Ron Davis, Owner of Southwest Smith argues that the court sustained objections to his questions to Davis and impaired his ability to develop Southwest’s authorization or ratification of Printup’s conduct. Smith points to a series of questions asked during 4 of the 58 pages of counsel’s direct examination. Our consideration of the entire direct examination demonstrates that counsel developed Smith’s theory of authorization or ratification by showing, among other things, that Southwest took no action against Printup despite the many hours of service violations he received throughout the summer prior to the accident. Smith fails to establish an abuse of discretion on the part of the trial court. 2. Amount of Punitive Damages Assessed Against American Red Bah The punitive damages assessed against Red Ball on remand were $100,000, the same amount assessed in the earlier proceeding. Smith asks that we reverse and remand because the trial court (1) ignored the new evidence regarding Red Ball’s authorization or ratification of Printup’s conduct admitted pursuant to our opinion in Smith v. Printup; (2) failed to follow the provisions of K.S.A. 60-3701(b); and (3) improperly considered one victim’s financial status and both victims’ character. Standard of Review Prior to the enactment of K.S.A. 60-3701 and 60-3702, which places the calculation of the amount of punitive damages with the trial court instead of a jury, we applied an abuse of discretion standard when reviewing a punitive damages award. See Folks v. Kansas Power & Light Co., 243 Kan. 57, 77, 755 P.2d 1319 (1988). In Gillespie v. Seymour, 253 Kan. 169, 172-73, 853 P.2d 692 (1993) (Gillespie II) (quoting Henderson v. Hassur, 225 Kan. 678, 694, 697, 594 P.2d 650 [1979]), we noted the change brought by the enactment of K.S.A. 60-3701: “The enactment of K.S.A. 1992 Supp. 60-3701 (and its companion K.S.A. 1992 Supp. 60-3702) represents a substantial change in the award of punitive damages in Kansas. Prior thereto, the trier of fact determined the amount of damages based upon rather nebulous factors. Appellate review thereof was limited. ,We stated the general rules relative to punitive damages in Binyon v. Nesseth, 231 Kan. 381, 386, 646 P.2d 1043 (1982), as follows: ‘An appellate court will not find a punitive damage award excessive unless it is of a size to shock the conscience of the appellate court. [Citation omitted.]. ... “It is difficult, if not impossible, to lay down precise rules by which to test the question of when a verdict for punitive damages is excessive. [Citation ommitted.] Punitive damages are imposed by w.ay of punishing a party for malicious or vindictive acts or for a willful and wanton invasion of another party’s rights, the purpose being to restrain him and to deter others from the commission of like wrongs. [Citation omitted.] The law establishes no fixed ratio between actual and exemplary damages by which to determine excessiveness. In assessing punitive damages the nature, extent, and enormity of the wrong, the intent of the party committing it, and all circumstances attending the transaction involved should be considered. Any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. [Citation omitted.] In fixihg an award of punitive damages a juiy may consider the amount of actual damages recovered, defendant’s financial condition and the probable litigation expenses. [Citations omitted.]’ ” “Under K.S.A. 1992 Supp. 60-3701, a bifurcated proceeding is established. The trier of fact determines if punitive damages should be awarded. The court, in a separate proceeding, then establishes the amount thereof. A substantial list of factors is set forth in the’court’s consideration in determining the amount of the award.” Subject to tbe provisions of K.S.A. 60-3701, the standard of review remains one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3701 have been applied by the trial court in setting the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion, which is another way of saying that the action of the trial court was arbitrary, capricious, or unreasonable. See Ensminger v. Terminix Intern. Co., 102 F.3d 1571 (10th Cir. 1996). We also have stated that “[w]hen determining the amount of punitive damages to be awarded under K.S.A. 1992 Supp. 60-3701, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review thereof.” Gillespie II, 253 Kan. 169, Syl. a. The Trial Court’s Consideration of Evidence Related to Authorization or Ratification Upon remand, additional evidence excluded at the first trial was admitted. The evidence admitted supported Smith’s theories that punitive damages should have been assessed against Red Ball because it had an attitude, pattern of practice, and mental state of mind which showed disregard, indifference, and defiance for federal safety rules and regulations and the safety of the public. The following new evidence was admitted: The transcript of deposition of Roberta Sisson, past employee of Red Ball who audited drivers’ logs and log violations; transcript of deposition of Paul Nahre, Director of Safety for Red Ball; transcript of deposition of Chris Heiner, past employee of Red Ball; the transcript of deposition of Cheryl Riley, past safety coordinator of Red Ball; Red Ball’s driver file for Southwest’s driver Albert Printup; and Red Ball’s safety audit file and correspondence concerning logging procedures. Smith acknowledges that the trial court permitted the introduction of the evidence of wrongdoing on the part of Red Ball and Printup prior to November 8, 1983, which had been excluded at the first trial. However, Smith argues that the court completely disregarded the impact of this evidence. Smith argues that if this court in Smith v. Printup believed that the additional evidence would not have had the effect of raising punitive damages by at least one cent, it would have found the error to be harmless. Smith misreads our decision in Smith v. Printup. We concluded that the evidence excluded was relevant and admissible on the issues of ratification or authorization. The trial court’s exclusion of relevant and admissible evidence affected the substantial rights of the plaintiffs. 254 Kan. at 347. We did not express an opinion upon the effect such evidence would have had if it had been admitted. Our decision simply said that Smith should be given the opportunity to present such evidence and that its exclusion was prejudicial. We held: “The exclusion of evidence [relating to Red Ball’s ratification and authorization of drivers’ fatigue-causing conditions] also affected the substantial rights of plaintiffs as to the court’s determination of the amount of punitive damages. The punitive damages awards against Red Ball and Printup are reversed and remanded for further consideration by the court. While the excluded evidence relates to authorization and ratification, it also relates to the conduct of Printup and Red Ball. With new evidence, a determination of the amount of punitive damages against these two defendants may change.” (Emphasis added.) Smith v. Printup, 254 Kan. at 347. In its memorandum decision awarding the punitive damages, the trial court considered the new evidence but decided “that the additional evidence does not change the Court’s decision as to the amount of punitive damages awarded” against Red Ball. The court further concluded: “American Red Ball is liable because it ratified the actions of Printup. It wifi almost be impossible to prove a case of actual authorization of any person to act wantonly. American Red Ball is liable for punitive damages because of its actions in allowing Printup to drive in violation of the hours of service rules, therefore, it ratified the acts of Printup. In other words, American Red Ball is being assessed punitive damages because of its own conduct.” After indicating that it considered the statutory factors in K.S.A. 60-3701(b), the trial court concluded: “[T]he additional evidence does not change the Court’s decision as to the amount of punitive damages awarded. This decision is made for the best interest of justice. It is far better that a smaller award of punitive damages be paid rather than a large award that is unpaid. The matter of re-computing this award has been constantly on the mind of the Court since the issuance of the opinion of the Supreme Court. This award is based on a desire to do justice to the parties.” Smith relies on the Gillespie cases for authority that the trial court erred. Gillespie v. Seymour, 255 Kan. 774, 877 P.2d 409 (1994); Gillespie II, 253 Kan. 169; and Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1991) (Gillespie I). These cases involved the same trial judge who presided in this case. The issue involved in the Gillespie cases was the question of profitability as related to the statutory caps on punitive damages provided in K.S.A. 60-3701(e) and (f). In Gillespie II, we were primarily concerned with the method whereby the trial court calculated the amount of profitability of the defendant’s misconduct pursuant to 60-3701(f). 253 Kan. at 170-72. While in Gillespie II this court examined an award that was identical to the original award appealed in Gillespie I, the primary reason for the second remand to the district court was due to the lack of a meaningful record for this court to review. 253 Kan. at 174. In this case, the findings and conclusions of the trial court are set forth in its memorandum decision. It is obvious that the trial court considered the new evidence and for reasons set forth in its opinion assessed the same amount of punitive damages. Our decision in Smith v. Printup contemplates such action by its use of the discretionary language “may change.” 254 Kan. at 347. The trial court in this case considered the new evidence as well as the factors set forth in K.S.A. 60-3701(b). We conclude that Smith has failed to establish an abuse of discretion on the part of the trial court in reassessing the punitive damage award against Red Ball. b. The Trial Court’s Consideration of Statutory Factors K.S.A. 60-3701(b) provides the following guidance to a trial court assessing punitive damages: “(b) At a proceeding to determine the amount of exemplary or punitive damages to be awarded under this section, the court may consider: (1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant’s misconduct; (2) the degree of the defendant’s awareness of that likelihood; (3) the profitability of the defendant’s misconduct; (4) the duration of the misconduct and any intentional concealment of it; (5) the attitude and conduct of the defendant upon discoveiy of the misconduct; (6) the financial condition of the defendant; and (7) the total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damage awards to persons in situations similar to those of the claimant and the severity of the criminal penalties to which the defendant has been or may be subjected.” Smith argues that he presented evidence directly relevant to subsections (1), (2), and (4) above. However, he insists that the trial court focused instead on the conduct of the victims and their attorneys. Further, he asserts that the trial court ignored the substantial amount of attorneys’ fees accrued by the plaintiffs and heavily weighed the plaintiffs’ opportunities to settle the case. Punitive damages are in the nature of an equitable action. Smith v. Printup, 254 Kan. 315, Syl. ¶ 7. The trial court must weigh the evidence presented to arrive at an award. In this case, the court carefully considered the provisions of K.S.A. 60-3701(b)(1)-(7). While die court does not make explicit the facts it found relevant for each factor, see e.g., Patton v. TIC United Corp., 859 F. Supp. 509 (D. Kan. 1994), aff’d 77 F.3d 1235 (10th Cir.), cert. denied 135 L. Ed. 2d 1049 (1996), it is clear that the decision was made with the statutory provisions in mind. The trial court directly addressed the question of attorney fees: “Attorney fees are costs that can be considered in assessing punitive damages. The court considers that defendants would at all times been willing to settle the survival action for the amount of the jury verdict and that the time and expense in the cases involved matters other than the wrongful death action.” In Smith v. Printup, we authorized evidence concerning litigation expenses to become the law of the case upon remand, stating: “Likewise, the court’s rulings regarding the admission of evidence of remedial conduct together with evidence of settlement negotiations are affirmed and become the law of the case upon remand.” 254 Kan. at 359. Probable litigation expenses have long been considered a factor in awarding punitive damages. “An award of punitive damages must be reviewed in the light of the actual damages sustained, the actual damage award, the circumstances of the case (the nature, extent, and enormity of the wrong), the intent of the party committing the wrong, the relative positions of the plaintiff and the defendant, the defendant’s financial worth, and the plaintiff’s probable litigation expenses. When reviewing punitive damages, any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages.” (Emphasis added.) Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 366, 837 P.2d 330 (1992). In this case, the trial court was in a unique position to make its determination regarding settlement and the plaintiffs’ probable litigation expenses. We find no abuse of discretion in the trial court’s determination not to include the plaintiffs’ litigation expenses in determining the amount of the award against Red Ball. c. The Trial Court’s Consideration of the Victim’s Financial Status and Character The trial court included the following paragraph in its memorandum decision: “In the old days, when a jury assessed punitive damages, the jury considered all of the evidence, including the evidence about the person seeking damages, in making its award. A court in assessing punitive damages cannot do less. Glen Smith was a highway Patrolman assigned to the Kansas Turnpike. Based on the evidence in the case, Glen Smith was much more in debt [than] any law enforcement officer should be, and especially not, the premier uniformed law enforcement agency of the state. In addition, Smith had been subject to wage withholding orders for failure to pay alimony and child support. While hearing the retrial of the matters involving Southwest Movers, the court aide called the Court’s attention that the other person (Glen Smith’s ‘housemate’) killed in the crash was the court aide’s probationer at the time of [the] accident. (See Case No. 87 CR 519.) (The case is not evidence the Court can consider.)” Smith argues that this evidence is immaterial to the calculation of punitive damages. We agree. Kansas law supports a conclusion that evidence of a victim’s financial status or character, as mentioned by the trial court, is not relevant in a determination of the amount of punitive damages. While the relative financial positions of the plaintiff and the defendant may be considered, see Cerretti, 251 Kan. at 366; Folks, 243 Kan. at 78, and Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 420, 681 P.2d 1038, cert. denied 469 U.S. 965 (1984), such consideration does not include personal characteristics of a plaintiff such as his or her debts, his or her living arrangements, or his or her status as a probationer. The policy underlying the imposition of punitive damages supports the conclusion that the evidence of Glen Smith’s debts or his character are not relevant. In Smith v. Printup, we said: “Punitive damages are not given upon any theory that the plaintiff has any just right to recover them, but are given only upon the theory that the defendant deserves punishment for his or her wrongful acts and that it is proper for the public to impose them upon the defendant. No right of action for punitive damages is ever given to any private individual who has suffered no real or actual damage.” 254 Kan. 315, Syl. ¶ 3. As one commentator explains: “Punitive damages may be contrasted with compensatory damages, special damages, contract damages, restitution, or equitable damages, which, in contrast to punitive damages, are measured by the difference in the position of the party after the wrong as compared to that party’s position before the wrong. These compensatory, special, contract, restitution or equitable damages are not intended to im prove the position of the party injured or damaged as a practical consequence of their award. “Indeed, punitive damages do not depend on the financial condition of the party wronged, but rather upon the financial wherewithal of the party at fault who has acted maliciously or oppressively. The amount of punitive damages is often said to be based upon the sum that is perceived to punish or to deter the offending conduct. That sum may depend upon the financial size and strength of the defendant, the degree of the community’s outrage, and other factors. Punitive damages,- accordingly, may enrich the recovering party, who obtains a windfall to the extent that he is placed in a better position than he enjoyed before the offensive' conduct occurred.” Blatt, et al., Punitive Damages § 1.3(B) (1991). The trial court erred in mentioning the information concerning the debts of Glen Smith and character evidence concerning Glen Smith and Elliott. However, an error which does not prejudice the substantial rights of a party affords no basis for reversal of a judgment and may be disregarded. Tamplin v. Star Lumber & Supply Co., 251 Kan. 300, 308, 836 P.2d 1102 (1992). The trial court memorandum decision contains one paragraph relating to the evidence erroneously considered. The remaining three.pages deal with factors set forth in K.S.A. 60-3701 as well as other financial information relating to the ability of the defendants to pay such damages. The court says that it has carefully considered the provisions of K.S.A. 60-3701(b); Smith does not contend that these factors were not considered. Nor does Smith complain that the findings relating to these factors are inadequate. Nothing in the trial court’s decision indicates that it based its determination upon the information found by this court to be erroneously considered. A reading of the entire memorandum decision supports the opposite conclusion. The memorandum decision viewed as a whole illustrates the trial court’s primary concern about the financial condition of the defendants and their need and ability to pay such damages. Accordingly, we conclude that the error was harmless. 3. Refusing to Reassess the Amount of Punitive Damages Against Printup Under the Provisions of K.S.A. 60-3701(f) Standard of review Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). "When determining a question, of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Smith argues that the trial court incorrectly assessed punitive damages against Printup because it failed to consider Printup’s course of conduct prior to the accident. Smith points out that the exclusion of this evidence in the initial proceeding was the basis of this court’s remand. Printup does not respond to this argument. Smith points to the trial court’s discussion of K.S.A. 60-3701(e) and (f) and suggests that the discussion demonstrates that trial court ignored course of conduct evidence. K.S.A. 60-3701(e) and (f) 'provide alternative methods for calculating the maximum punitive damages available: “(e) Except as provided by subsection (f), no award of exemplary or punitive damages pursuant to this section shall exceed the lesser of: “(1) The annual gross income earned by the defendant, as determined by the court based upon the defendant’s highest gross annual income earned for any one of the five years immediately before the act for which such damages are awarded; or “(2) $5 million. “(f) In lieu of the limitation provided by subsection (e), if the court finds that the profitability of the defendant’s misconduct exceeds or is expected to exceed the limitation of subsection (e), the limitation on the amount of exemplary or punitive damages which the court may award shall be an amount equal to 1 Vs. times the amount of profit which the defendant gained or is expected to gain as a result of the defendant’s misconduct.” In discussing the above provisions, the trial court stated: “[T]he Court advises the parties that it has reached a decision on the amount of punitive damages to be assessed against defendant Albert Printiip, taking into consideration all the evidence admitted at trial and at the previous hearing on punitive damages. After duly considering the same, the Court finds that punitive damages should be assessed against defendant Albert Printup in the amount of $20,800, which is the most the Court believes it can assess against said defendant pursuant to K.S.A. 60-3701(é). The Court further finds that it does not believe K.S.A. 60-3701(f) applies to this case and, even if it did, it would award less punitive damages against this defendant than it has under K.S.A. 60-3701(e).” Smith argues that subsection (f) is applicable to the present case because Printup profited from his course of conduct which was proximately related to the accident. This conduct included falsifying log books and working too many hours in a day. Smith contends that had Red Ball been complying with the law, it would have fired Printup 4 years prior to the accident. Thus, Smith concludes that Printup profited from his violations by receiving continued employment. However, as the trial court noted upon remand, “I do not have any evidence that Mr. Printup would not have been working but for his violation of law.” Printup did not profit from illegal conduct for 4 years, rather, he profited, if at all, from Red Ball’s negligent supervision for the 4-year period prior to the accident. Under these facts, K.S.A. 60-3701(f) is inapplicable. We concluded that the trial court correcdy applied the provisions of K.S.A. 60-3701(e). 4. Claimed Lack of Impartiality of Trial Court After the district court declared a mistrial in the first retrial of Southwest’s authorization or ratification of Printup’s conduct, Smith filed a motion to disqualify the trial judge pursuant to K.S.A. 20-3lid. He stated that the precipitating event to filing this motion was the judge’s behavior upon hearing testimony of expert witness John Neal and his declaration of a mistrial. The statute pursuant to which a motion for disqualification is filed states: “(a) If a party or a party’s attorney believes that the judge to whom an action is assigned cannot afford that party a fair trial in the action, the party or attorney may file a motion for change of judge. The motion shall not state the grounds for the party’s or attorney’s belief. The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeáred in the case. If the judge disqualifies the judge’s self, the action shall be assigned to another judge by the administrative judge. If the judge refuses to disqualify the judge’s self, the party seeking a change of judge may file the affidavit provided for in subsection (b). If an affidavit is to be filed it shall be filed forthwith. ■ ■ “(b) If a party or a party’s attorney files an affidavit alleging any of the grounds specified in subsection (c), the administrative judge shall at once determine, or refer the affidavit to another district judge for prompt determinátion of, the legal sufficiency of the affidavit. If the affidavit is filed in a district court in which there is no other judge who is qualified to hear the matter, the administrative judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determine the legal sufficiency of the af fidavit. If the affidavit is found to be legally sufficient, the case shall be assigned to another judge. “(c) Grounds which may be alleged as provided in subsection (b) for change of judge are that: “(1) The judge has been engaged as counsel in the action prior to the appointment or election as judge. ' “(2) The judge is otherwise interested in the action. "(3) The judge is related to either party to the action. “(4) The judge is a material witness in the action. “(5) The party or the party’s attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists. “(d) In any affidavit filed pursuant to this section, the recital of previous rulings or decisions by the judge on legal issues or concerning the legal sufficiency of any prior affidavits filed by counsel for a party in any judicial proceeding, or filed by such counsel’s law firm, pursuant to this section, shall not be deemed legally sufficient for any belief that bias or prejudice exists.” K.S.A. 20-311d. Smith alleges that K.S.A. 20-311d(c)(5) is applicable to the present case. Upon Smith’s motion, the trial judge decided not to disqualify himself. Pursuant to the statute, Smith filed a formal motion with the administrative judge. Counsel supported the motion with three affidavits, including several attachments. The administrative judge heard and denied the motion. He certified the issue for interlocutory appeal. However, there is no indication in the record on appeal that the ruling was appealed. Standard of Review In determining the sufficiency of an affidavit filed pursuant to K.S.A. 20-311d, we examine whether “[t]he affidavit . . . state[s] facts and reasons, pertaining to the party or his attorney which, if true, give fair support for a well-grounded belief he will not obtain a fair trial. [Citations omitted.] The question of the sufficiency of the affidavit is one of law for the court to determine but ‘[previous adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him as a judge.’ ” Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 311, 607 P.2d 1339 (1980). “The standard to be applied to a charge of lack of impartiality is: ‘whether the charge of lack of impartiality is grounded in facts that would create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.’ ” State v. Griffen, 241 Kan. 68, 72, 734 P.2d 1089 (1987) (quoting State v. Logan, 236 Kan. 79, 86, 689 P.2d 778 [1984]). Discussion In his brief, Smith highlights two events which he feels illustrate Judge Buchanan’s bias. First, Judge Buchanan required the plaintiffs to file a response to Southwest’s motion for summary judgment. He argues that the judge was attempting to avoid retrial on the issue remanded by this court. He asserts that the trial judge erred by ignoring the “law of the case” doctrine. Second, Smith relies heavily upon the events leading to the mistrial, including the judge’s reaction to and subsequent disqualification of the plaintiffs’ expert witness and the judge’s declaration of mistrial without motion from Southwest’s counsel. Smith postulates that the judge chose a mistrial because he knew that the jury would find for Smith. In response, Southwest argues thát the affidavits do not support disqualification of the trial judge. It characterizes Smith’s complaints as falling into three categories: (1) rulings adverse to the plaintiffs; (2) comments made by the trial judge; and (3) the demeanor of the trial judge. Southwest contends that none of these categories proves bias on the part of the trial judge. The affidavits submitted to support Smith’s claim of bias and prejudice were made by the daughter of one of the victims, Lisa Smith Gilmartin; the expert witness, Neal; and the plaintiffs’ counsel, Randall E. Fisher. The Gilmartin and Neal affidavits primarily focus on Judge Buchanan’s demeanor at the first trial following remand which resulted in a mistrial. Gilmartin states that “[t]he trial judge’s demeanor seemed to change immediately when Mr. Neal came to the stand. His demeanor made . . . clear to me that he did not like the witness.” Both Gilmartin and Neal state their opinion that the trial judge intended to prevent Neal from testifying, whether through sustaining Southwest’s objections or finally disqualifying Neal as an expert. Neal states: “In my many years as a consulting expert on motor carrier safety I have never been treated in this manner by any trial judge before whom I have appeared.” Similarly, Fisher states: “In nearly twenty years as a trial lawyer, I have never seen a trial judge act in the outrageous manner that Judge Buchanan acted on June 27, 1995.” To determine the legal sufficiency of these statements, we will discuss the relevant sections of the trial transcript below. Adverse evidentiaiy rulings alone are not ordinarily sufficient grounds for disqualification. In this case, the trial court’s request that Smith file a response to summary judgment and its denial, of Smith’s motion to strike the motion for summary judgment are adverse rulings which do not support the motion to disqualify. We must, therefore, examine whether the facts leading to the mistrial, the declaration of the mistrial, and the disqualification of Smith’s expert witness establish bias and prejudice on the part of the trial judge against Smith or his . counsel. The controversy surrounding the granting of the mistrial involves the question of whether Smith’s expert, Neal, had changed his opinion on the question of whether Southwest had a duty to audit the driver logs of Printup. The trial court was of the opinion that the witness changed his opinion from the first trial. Counsel for Southwest objected on the basis that the changed testimony violated the pretrial order. Because of the emphasis placed upon this controversy by Smith, the complete record regarding the declaration of the mistrial is set forth below: Questions by Smith’s counsel: "Q In your opinion, (lid Southwest Movers have an obligation to formally audit the log books? “A They should insure themselves— “Mr. Troutt (counsel for Southwest): No, I object, that’s a yes or no. I need to track there. That’s a yes or no. I would like to have response. “Q Answer it yes or no, Mr. Neal. Do they have a duty? “A Yes. “THE COURT: Just a minute. “Q Do— “THE COURT: Just a minute. “MR. TROUTT: May we approach? “THE COURT: Yes, please. “(The following proceedings were had at the bench off-the-record by Court and counsel after which the following proceedings were had:) “THE COURT: All right. Restate the question. “Q Listen to my question, Mr. Neal, what I am saying. Does Southwest Movers, the agency company, have a duty to conduct a formal audit on the log books? “A Yes. They should audit the log books, yes. “MR. TROUTT: I will object. This requires out of presence— “Q Mr. Neal— “THE COURT: Members of the jury, I am going to ask you to go to the jury room at this time. “(After the jury had retired to the jury room, the following proceedings continued:) “MR. TROUTT: We were told when we started this trial in the pretrial order that this witness’ opinions would be limited to those he gave in the first trial. You never advised us he was going to change the opinions. We assumed for the defense of this case admissions, which you made at the hearing sometime before trial, there was no duty. Now this witness has obviously changed his opinion, and I am not sure how you handle the situation, or let him go further in his testimony. “MR FISHER: Well, let me ask. Maybe I didn’t put the question the right way. “THE COURT: No, the question has been asked and answered. It’s been asked twice. He can’t change his answer. “MR. FISHER: Let me ask a different question. “THE COURT: No, we are on the state of the record we are in right now. The Court has indicated an instruction that there’s no duty to audit the records and that was a matter that was completely gone through prior to commencement of the trial, again based on this witness’ testimony in a prior case. “MR. FISHER: I understand, but I think what he said in the prior case is something I haven’t gotten to yet. “MR. TROUTT: I disagree. “THE COURT: Let me see the question in the prior case. Now, let me see the prior testimony. “MR. FISHER: I don’t have it with me, Your Honor. What he said'in the prior case was if Red Ball does, they don’t; and I think that’s what we haven’t got to yet. “THE COURT: Well now, are we going to have testimony that Southwest has a duty to investigate Red Ball to find out if Red Ball is auditing it? “MR FISHER: No, that’s not what I am saying. “Q Mr. Neal, does— “THE COURT: No, you are addressing the Court. I am not permitting any questions at this time. “MR. FISHER: Well, if you give me a chance, I think I can clear it up. “THE COURT: No. We will excuse Mr. Neal and you can clear it up with me, but I don’t want any coaching of Mr. Neal. “MR. FISHER: I am not coaching him. I am asking him a question if he answers the— “MR. TROUTT: I would like Mr. Neal to be excused from this hearing. “THE COURT: Yes. Mr. Neal, would you leave the courtroom, please. “(Witness leaves the courtroom.) “THE COURT: How do you think you can clear it up? “MR. FISHER: What I understand from what he has told me consistently, Your Honor, is that if Red Ball conducts a formal audit, then Southwest doesn’t have an obligation to do it. And I think that’s what I need to ask. What he said is— “THE COURT: Where is it going to go from there then? “MR. FISHER: Where is he going to go from there, while .there is not a duty for Southwest to conduct a formal audit because Red Ball did that in this case, that they still have a duty to pay attention to see whether or not the drivers are turning in false logs. “THE COURT: What do you want to do, Mr. Troutt? “MR TROUTT: There is a case, and we are going to get it, that it’s been cited to me by Mr. Fisher in a similar situation. That’s the Stormont Vail case. Now, we have different testimony that I am not prepared for based on whatever the damage has been done, and I can’t react to it. This witness has to be excused and we have no more testimony from him. The jury should be told that his testimony should not be considered in this case because unfair prejudice to me from this testimony from the stand to clear it up. You can’t take what he said, which replaces everything else I said. This has gotten in a posture that can’t be cured, so that the witness’ testimony can be considered by the jury. “MR. FISHER: I think it can. If he explains to the jury what I just told you and what he told me, that Southwest does the audit, or if Red Ball does the audit, that Southwest doesn’t need to, then the jury will understand what he is talking about and we can move on. “THE COURT: He already said they have the duty to audit. “MR. FISHER: But we haven’t explained under what circumstances, and what he told me was when we were preparing was that Southwest has the duty if Red Ball doesn’t audit, but if Red Ball audits, then Southwest doesn’t have, the duty to conduct a formal audit. “THE COURT: Well, let me look at this case. “MR. TROUTT: Can we take about three minutes? “THE COURT: I don’t know what’s back there.' “(Whereupon a recess was taken, after which the following proceedings are had before the Court outside the hearing of the jury.) “THE COURT: What do you want me to do, Mr. Troutt? “MR. TROUTT: Well, at this point I don’t want the Court to have the idea that’s all the law. That’s just something. “THE COURT: I understand. “MR TROUTT: At this point I would like the Court to not allow Mr. Neal to further testify because I am not in a position to cross-examine to those damages. He has done damage that cannot be cured. I ask the Court to instruct the jury that his opinions cannot be considered at all in this case. “MR. FISHER: Your Honor, first of all, I think that the motion to strike the testimony is premature. If I am allowed an opportunity to ask him under .what circumstances they have a duty, and what circumstances they don’t, I am sure he will tell you if Red Ball conducts the audit, that Southwest doesn’t need to. That the only time they need to is if Red Ball is not auditing, but that really the essence of his testimony is what Southwest needs to do is have some kind of observation of whether or not the drivers are falsifying their log books. “Secondly, the Hagedom case doesn’t even factually apply. It has to do with an expert who went out and surreptitiously examined the defendant’s facility. The remedy is to cross-examine the witness about his prior inconsistent statement. Hagedom has nothing to do with prior inconsistent statement, it has to do with review that was against a Court order. The first thing to do, so the juiy understands, he is not talking about a blanket duty. They will understand what is going on. “MR. TROUTT: I have one other thing to say. Let’s solve it by asking these other questions will not solve it. He has also given opinions in his deposition or trial testimony before that Southwest doesn’t have an obligation to even keep these logs, or to keep these documents and crosscheck, so this is not going to be solved. As he testified before, they didn’t have to keep the logs. “THE COURT: Are you moving for mistrial, Mr. Troutt? “MR. TROUTT: I will consider that after we have the Court’s ruling on the first motion. I prefer to proceed as we are proceeding without this witness’ testimony. “MR. FISHER: Well, Yoür Honor, I don’t think that even striking his entire testimony is even appropriate because the other opinions don’t have anything to do with the statement like he said, I think this can all be cured. “THE COURT: No, I don’t think it can be cured, Mr. Fisher, because the matter as presented to me that there’s absolutely no duty — he claimed there is no duty to audit. “MR. FISHER: What he said in the previous trial. “THE COURT. This previous testimony and this was his testimony in the previous trial. He has testified now twice that they do. “MR. FISHER: What he said, they had no duty because American Red Ball did the audits. We haven’t got beyond that yet. “THE COURT. I am not going to allow him to change his testimony. “MR. FISHER: It is not changing his testimony. It is explaining his answer. What he said in the previous trial was American Red Ball wasn’t doing the auditing as well as it should. “THE COURT: Do you want to move for mistrial, Mr. Troutt? “MR. TROUTT: Well, if my'first motion is not sustained, then, we will move for mistrial.. There’s been extreme .costs associated with getting this far and that’s why I am reluctant to do that if it can be solved. “THE COURT: Well, the witness has testified for, I haven’t kept exact track of time, from 10:35 to 11:10 or 11:15, and that’s too much to ask the jury to strike the testimony. I will declare the mistrial. “MR. TROUTT: Then we will take that remedy. “THE COURT: Further stating on the- record Mr. Neal is disqualified as an expert. “MR. FISHER: Well, before the witness is allowed to go, Your Honor, I would like to make a proffer of his testimony and have him tell you what his explanation is if he had been allowed to explain the answer to me, so we have a proper record for appeal. “THE COURT: This mistrial has been declared. “MR. FISHER: Well, but you also go further and said he is disqualified from testifying. “MR. TROUTT: He can consider the proffer what he said in his prior testimony. “THE COURT: The way he tries toqualify him again is immaterial. I will go back and tell the jury what has happened. “MR. TROUTT: So we are excused, Your Honor? “THE COURT: Yes.” Counsel for Smith clarified his position for the trial court when he stated that the expert witness would say that Southwest had a duty only if Red Ball did not conduct an audit. He did not ask for time to bring forth the transcript of the previous trial. The trial court expressed genuine concern based upon the contentions of defense counsel that the witness changed his opinion in violation of the pretrial order. Defense counsel said that the damage done to its case was irreparable and that he was not prepared to cross-examine the witness on his new opinion; however, because of the great expense involved, he requested that the testimony of the witness be struck and the jury advised not to consider such evidence. Counsel for Smith asked for time with the witness to clarify the duty involved. The court responded that the witness had twice testified that Southwest had a duty to audit. The record supports this observation. The above record does not support a finding of judicial bias or prejudice against Smith or Smith’s counsel. Rather, it demonstrates the struggle the trial court experienced according to its understanding that an expert witness testifying on behalf of Smith changed his previous testimony by stating that Southwest has a duty to audit driver logs. The issue in this jury trial was whether Southwest authorized or ratified the acts of its driver, Printup. The duty to audit drivers’ logs was a pivotal question. The trial judge considered that the damage to the defendant’s case was irreparable, a conclusion supported by the comments of defense counsel. Thus, the court declared a mistrial. The record provides no basis for concluding bias or prejudice on the part of the trial court. Ultimately, the court withdrew its prohibition against Neal testifying. In fact, Neal testified at the retrial. By resolving its dilemma between striking the evidence of the expert or declaring a mistrial, the court preserved fairness by granting a trial before a new jury. Such action also removes any claim that Smith was denied a fair trial. We agree with the decision of the administrative judge that on these points the affidavits are not legally sufficient to support the disqualification. The additional grounds for disqualification contained in counsel’s affidavit have been considered by this court and the record supports the conclusion reached by the district administrative judge that they fail to demonstrate personal bias, prejudice, or interest of the judge under the provisions of K.S.A. 20-311d(c)(5). Based upon our decision, we do not consider the cross-appeal. Affirmed.	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The opinion of the court was delivered by Larson, J.: Richard B. Kelly appeals his jury convictions of one count of aggravated battery of a law enforcement officer and one count of simple battery of a law enforcement officer, as well as his controlling sentence of 46 years to life imposed under the Habitual Criminal Act. The convictions arose from Kelly’s alleged attack, while in prison, upon two correctional officers. Factual statement In October 1990, Kelly was convicted by a jury in Wyandotte County, Kansas, of three counts of aggravated assault. The trial court found that Kelly had been convicted in Missouri on March 23, 1989, of armed robbery and invoked the provisions of the Habitual Criminal Act to enhance Kelly’s sentences for the crimes. Kelly was sent to .the El Dorado Correctional Facility (EDCF). Kelly was designated a special management inmate. He was housed in a segregation unit, cell block B, number 266. Segregation inmates are kept in their cells 23 hours a day and have no physical contact with other inmates. They receive meals in their cell and are allowed out of their cells only to shower and to go to the exercise yard. Robert Sutton and Roger Noah were correctional officers working in cell block B at EDCF in 1992. Their duties included feeding the segregation inmates and taking them to the showers. An inmate is fed by having him place his hands on the window of the door to his cell while the officers unlock a small “bean hole,” which folds down towards the officers. The inmate’s food is slipped through the hole. When an inmate is moved from his cell, he places his hands through the bean hole to be handcuffed. After his restraints are in place, the officers open the door to escort the prisoner to his destination. A reverse procedure is followed to remove the restraints when the inmate reaches his destination. On December 20,1992, officers Sutton and Noah took Kelly his evening meal. Kelly placed his hands on the window, but Sutton saw something between two fingers of Kelly’s right hand. Sutton thought it was a razor blade wrapped in tape and told Noah not to open the bean hole. The officers informed their sergeant, and a “shakedown team” was sent to Kelly’s cell to investigate. Nothing was found in Kelly’s cell, although his mattress, which had a slit in it, was replaced. The following day, Noah and Sutton were informed that after his shower, Kelly was to be transferred to cell 200, an observation cell. Kelly was taken from cell 266 and locked in the shower. After his request for a razor was denied, he simply stood in the shower without showering. Noah then went to cell 266 to take Kelly s belongings to cell 200. The officers then restrained Kelly and escorted him to cell 200. Once inside, Kelly placed his hands through the bean hole to have his restraints removed. Using both hands, Noah put the handcuff key in the right lock and unlocked Kelly’s right cuff. The officers testified that Kelly withdrew his right hand into the cell. Sutton’s left hand grasped the empty right cuff. Noah proceeded to put the key in the left cuff lock hole and turned it. He then saw Kelly’s hand flash out twice and saw Sutton grab his hand and back up. Noah noticed blood splattering and looked down and saw he was also cut. Sutton saw Kelly’s hand come out and hit his hand, then strike Noah. He saw what looked like yellow masking tape between Kelly’s fingers. Noah heard Kelly say, “I got both them [expletive],” and heard the toilet flush. EDCF officer James Mánion, working in the control center, saw Kelly’s hand come out of the bean hole and move across both officers’ hands, then saw blood dripping. Manion also heard the toilet flush before he was able to shut off the plumbing. After the officers were cut, an emergency alarm was called. Both officers were taken to a hospital for treatment. Noah suffered a 12 cm. long, deep laceration across the top of his right hand, which exposed, but did not cut, his tendons. Noah also received a 6 cm. long cut oh his left wrist. His injuries required 12 interior stitches and 29 exterior stitches. The cut on Noah’s wrist was very close to the radial artery, which if severed could have led to serious bodily injury or death. Sutton received a 10 cm. long cut on the back of his hand, which also exposed, but did not cut, the tendons. Four interior stitches and 15 exterior stitches sutured his cut. The clean edges of the cuts were consistent with a sharp instrument, such as a razor blade from a disposable razor. Although Sutton suffered a slight infection and both men retained scars from their injuries, they ultimately regained full use of their hands. After the alarm, a shakedown team removed Kelly from his cell and searched it. No weapons were found in the cell or on Kelly’s person following a strip search. Kelly was x-rayed, but no weapon was hidden inside his body. Kelly was charged with two counts of aggravated battery against a law enforcement officer. At trial, the State was allowed to place in evidence a disposable BIC razor, a razor blade that had been removed from a BIC, and the remains of a BIC after the blade had been removed. Photographs of the inside of cell 266, where Kelly had been removed from, revealed the words “Kill guard” written on the walls. In addition, Sutton testified that prior to the cutting, Kelly had made statements telling them how fast he was. Noah testified that Kelly had said Noah would pay for depriving him of his meal the day before the incident. Kelly testified on his own behalf. He denied the photographs were of cell 266 and claimed he made no such statements to Sutton and Noah. Kelly testified that as Noah was unlocking the cuffs, Sutton used his left hand to hold on to Kelly’s right hand. Sutton reached down with his right hand to pick up a piece of metal that had fallen off of some leg irons, and then he jerked back. Then Kelly saw blood, shook off the unlocked cuffs, and dropped them outside the bean hole. Kelly denied cutting the officers or actually seeing them get cut, but thought that the cuts had to have been caused “whenever Sutton made that move and turned off, what ever, you see what I’m saying, it had to come from there.” Kelly also denied flushing his toilet. The court instructed the jury on all alternative means of committing aggravated battery against a law enforcement officer and the lesser included offense of battery against a law enforcement officer. The court also gave a deadly weapon and great bodily harm instruction. The jury found Kelly guilty of aggravated battery against Officer Noah and battery against Officer Sutton. Kelly moved for a new trial or judgment of acquittal on die grounds that the jury returned an inconsistent verdict and that no evidence supported the aggravating circumstances. These motions were denied. Kelly was sentenced to 1 to 5 years for the battery conviction and 15. years to life for the aggravated battery conviction, both sentences to run consecutive to each other and his prior sentence. At sentencing, the court applied the Habitual Criminal Act, K.S.A. 21-4504(b), and found that die State, by submitting the journal entry of judgment for Kelly’s 1990 Kansas felony convictions (which included a finding that Kelly had been convicted in Missouri of armed robbery in 1989), had properly proved Kelly had two prior felony convictions. The court then enhanced Kelly’s aggravated battery sentence to a term of 45 years to life. Kelly appeals his convictions and enhanced sentence pursuant to K.S.A. 22-3601(b)(1), raising five issues. Sufficiency of the evidence Kelly first argues the record is insufficient to support his conviction for aggravated battery against Noah. Kelly asserts the facts do not indicate that Noah suffered great bodily harm or disfigurement. He also claims the State failed to produce any evidence of a deadly weapon in this case. He makes the additional argument that the record must reveal evidence of all three of the alternative means of committing aggravated battery in order to support a conviction, citing State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994). The aggravated battery statute in effect at the time of the crime, K.S.A. 21-3414 (Ensley 1988), provided: “Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which either: (a) Inflicts great bodily harm upon him; or , (b) Causes any disfigurement or dismemberment to or of his person; or (c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.” The amended information charged in Count II: “That in Butler County, Kansas, on or about the 21st day of December, 1992, Richard B. Kelly, a person in the custody of the Secretary of Corrections (El Dorado Correctional Facility Inmate #52978), did then and there unlawfully touch or apply force to the person of Roger L. Noah, a Correctional Officer engaged at the time in the performance of his official duty, with the intent to injure Roger L. Noah, and which either: (a) inflicted great bodily harm upon him; or (b) caused any disfigurement or dismemberment to him; or (c) was done with a deadly weapon (sharp instrument of some kind), or in any manner whereby great bodily harm, disfigurement, dismemberment, or death could be inflicted.” In stating our standard of review of this issue, we have said: “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996). In addition; appellate courts look only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994). As the information in this case alleged alternative means of committing a crime, we must consider the rule set forth in State v. Timley, 255 Kan. 286. We recently stated: “ 'In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to the guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means.’ State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875 P.2d 242 (1994). “' “In reviewing an alternative means case, the court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt.” ’ 255 Kan. at 289 (quoting State v. Kitchen, 110 Wash. 2d 403, 420, 756 P.2d 105 [1988]).” State v. Crane, 260 Kan. 208, 230, 918 P.2d 1256 (1996). We hold that the evidence in this case, when viewed in the light most favorable to the prosecution, could have supported a finding of guilt for any of the alternative means of committing aggravated battery. Evidence was presented to show great bodily harm as well as disfigurement, as Noah’s previously described injuries required extensive suturing and resulted in permanent scarring. The wounds were caused by a dangerous weapon which could have severed the radial artery and resulted in “great bodily harm, disfigurement, dismemberment, or death.” In defining great bodily harm in State v. Dubish, 234 Kan. 708, 715-16, 675 P.2d 877 (1984), we declared: “The word ‘great’ distinguishes the bodily harm necessary in this offense from slight, trivial, minor or moderate harm, and as such it does not include mere bruises, which are likely to be sustained in simple battery. Whether the injury or harm is great or not is generally a question of fact for the jury. [Citation omitted.]” Noah’s injuries consisted of no mere bruising, nor were they superficial grazes or cuts. They required several internal as well as numerous external stitches to repair the damage. We have no difficulty concluding that sufficient evidence existed to support this means of committing aggravated battery. We found that a scar on the head hidden by the victim’s hair was sufficient for disfigurement in State v. Chandler, 252 Kan. 797, 850 P.2d 803 (1993), and said: ‘When an injuiy has been established, whether it is a disfigurement under K.S.A. 21-3414(b) is a fact question to be determined by the trier of fact. Disfigurement should be considered in the ordinary sense.” 252 Kan. at 804. Clearly, Noah’s scars provide substantial evidence to support a finding of disfigurement. The evidence also could have indicated that the injuries were committed with a deadly weapon, as some type of sharp instrument was used in a manner that obviously was capable of causing death or serious bodily injury. See State v. Bowers, 239 Kan. 417, Syl. ¶ 1, 721 P.2d 268 (1986). Additionally, the evidence clearly supports a finding that the injuries were inflicted in a manner whereby great bodily harm, disfigurement, dismemberment, or death could have been inflicted. Thus, substantial evidence supports each alternative means of committing aggravated battery. Further, there is a logical reason for the discrepancy in the verdicts stemming from the attacks on the two different officers. The evidence reveals the injuries to Noah were more severe than the injuries to Sutton, particularly because he received two different cuts. In addition, one of Noah’s cuts came dangerously close to severing a major artery. Thus, there is evidence from which a jury could have decided that the attack on Noah resulted in great bodily harm or disfigurement or was done in a manner whereby great bodily harm, disfigurement, or death could have been inflicted, even though it apparently concluded that the attack on Sutton did not have such a result or was not performed in such a manner. Based on this evidence, a rational factfinder could have found Kelly guilty beyond a reasonable doubt of aggravated battery on Noah. Deadly weapon instruction The trial court gave the jury the following deadly weapon instruction: “The definition of a deadly weapon for purposes of the aggravated battery statute is an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injuiy.” Citing State v. Bowers, 239 Kan. 417, Kelly requested fhe addition of the language: “In cases of aggravated battery, the alleged victim’s perceptions of the instrument used are irrelevant.” The trial court refused to add this language to the instruction. We review jury instructions under the following standard: “ ‘Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the juiy could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.’ [Citation omitted.]” State v. Hunt, 257 Kan. 388, 392, 894 P.2d 178 (1995). In other words, we should approve the instructions if the instructions properly and fairly state the law as applied to the facts of the case considered as a whole, and if they could not reasonably mislead the jury. State v. Butler, 257 Kan. 1043, 1065, 897 P.2d 1007 (1995). We do not find that the omission of the requested language is significant, given the instructions as a whole, or that the instructions given could have reasonably mislead the jury. The deadly weapon instruction as given did not misstate the law. State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985) (citing Black’s Law Dictionary 487 [4th ed. rev. 1968]) (defining deadly weapon for purposes of aggravated battery the same as the instruction given here). Kelly is correct that an objective test applies to determine whether a deadly weapon was used in aggravated battery cases, as opposed to a subjective test applied in aggravated robbery cases. Bowers, 239 Kan. at 422. However, Kelly’s proposed language may have misled the jury in this case because it might have made the jury think the victim’s observations are irrelevant. This is not the case. The victim’s observations are certainly relevant; only the victim’s feelings about those observations are irrelevant. The statement advocated by Kelly, that the “victim’s perceptions of the instrument used are irrelevant” does not accurately convey the test that should be used, which is better stated in the comment to PIK Crim. 3d 56.18, Aggravated Battery: “The determination of whether the object was a deadly weapon is made on an objective basis rather than subjectively from the victim’s point of view.” Finally, even if the refusal to add the requested language was improper, any error was certainly harmless. We have said: “ ‘Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.’ ” State v. Johnson, 255 Kan. 140, 148, 871 P.2d 1246 (1994) (quoting State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 [1991], cert. denied 505 U.S. 1207 [1992]). Failure to give multiple counts instruction Kelly asserts the trial court erred in failing to give PIK Crim. 3d 68.07, Multiple Counts — Verdict Instruction, although he concedes he did not request the instruction. The instruction provides: “Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may-be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” Regarding our standard of review of this issue, we noted in State v. Pierce, 260 Kan. 859, 868, 927 P.2d 929 (1996): “No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection unless the instruction is clearly erroneous. K.S.A. 22-3414(3). “An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. State v. Deavers, 252 Kan. 149,164-65, 843 P.2d. 695 (1992), cert. denied 508 U.S. 978 (1993).” Kelly argues that because it was, error, to give an instruction that differed from PIK Crim. 2d 68.07 in State v. Macomber, 244 Kan. 396, 405-06, 769 P.2d 621, cert. denied 493 U.S. 842 (1989), overruled on other grounds State v. Rinck, 260 Kan. 634, 923 P.2d 67 (1996), it must constitute clear error to fail to give the instruction at all. In Macomber, however, the defendant objected to the instruction eventually given to the jury. Thus, the standard of review applied in Macomber differed from the clearly erroneous standard we utilize here. Although the multiple-count instruction should have been given in this case, we cannot find that the failure to give the instruction was clearly erroneous. Here, the jury was given separate verdict forms for each count, and it is clear the jury weighed the evidence for each count separately in reaching its verdicts. The evidence in this case would only support a finding that Kelly attacked both Sutton and Noah, or neither of them. As the jury plainly decided that Kelly perpetrated the attack, it was left to decide whether aggravating factors were present in both counts. The jury obviously independently weighed the evidence in order to conclude that an aggravated battery was committed against Noah, while only a simple battery was committed against Sutton. The jury clearly , considered the aggravating factors separately for each count, despite the court’s failure to specifically instruct the jury to do so. There appears to be no real possibility that the jury would have rendered a different result had the multiple-count instruction been given. As such, the failure to give the instruction is, at its worst, harmless error as we have previously described. The failure to give the instruction set forth in PIK Crim. 3d 68.07 cannot be deemed clearly erroneous. Admission of razors and blades Kelly next argues that the court should not have allowed the prison-issue razors and blades to be admitted into evidence for demonstrative purposes. He claims the State failed to show any connection between the razors that were admitted and the alleged crimes. We review the trial court’s admission of this evidence under the abuse of discretion standard. Regarding the admission of physical evidence, in State v. Bornholdt, 261 Kan. 644, 659, 932 P.2d 964 (1997) (quoting State v. Sexton, 256 Kan. 344, 353, 886 P.2d 811 [1994]), we stated: “ ‘Subject to certain exclusionary rules, the ‘[a]dmissibility of physical evidence is within the sound discretion of the court and is to be determined by the court on the basis of its relevance and its connection with the accused and the crime charged.’ State v. Beard, 220 Kan. 580, Syl. ¶ 3, 552 P.2d 900 (1976). In State v. Ji, 251 Kan. at 15, we said: ‘[Wjhen a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, unless it is clearly irrelevant, the object should be admitted for such weight and effect as the jury sees fit to give it.’ “We have at times stated that evidence may be admissible which does not constitute a portion of the crimes charged, but which has a natural, necessary, or logical connection to the crime. State v. McClanahan, 254 Kan. 104, 116, 865 P.2d 1021 (1993).” Relevant evidence is defined as “ ‘ "evidence having any tendency in reason to prove any material fact.” [Citations omitted]. The determination of relevancy is a matter of logic and experience, not a matter of law. [Citation omitted.]’ ” State v. Friberg, 252 Kan. 141, 147, 843 P.2d 218 (1992). The evidence objected to was clearly relevant in that inmates have access to such blades and testimony indicated that a vexy sharp item, consistent with such a blade, caused the wounds. The blades were also consistent with the item Sutton thought he saw Kelly holding both the day before the attack and during the attack. The admission of the blades may have had the logical tendency to prove how Kelly could have committed the crimes, even if they were not the exact item used to cause the officers’ injuries. As these items were clearly relevant, they were properly admitted for such weight as the jury deemed fit to give them. The trial court did not abuse its discretion in admitting diese items, and this point has no merit. Proof of prior felony conviction For his final point, Kelly claims that, as a matter of law, the trial court could not apply collateral estoppel to establish his prior Missouri conviction under the Habitual Criminal Act. We have unlimited review of questions of law. State v. Brady, 261 Kan. 109, Syl. ¶ 1, 929 P.2d 132 (1996). Kelly frames his argument in terms of the requirements of K.S.A. 1992 Supp. 21-4504(f), which states: “A judgment may be rendered pursuant to this section only after the court finds from competent evidence the fact of former convictions for felony committed by die prisoner, in or out of the state.” The question is whether a previous finding of a prior conviction satisfies the “competent evidence” requirement of the provision, which is governed by K.S.A. 60-465(4). See State v. Strickland, 21 Kan. App. 2d 12, 900 P.2d 854 (1995). In this case, a certified copy of the journal entry of judgment in Kelly’s previous Wyandotte County case was admitted into evidence. The journal entry showed ¿he Wyandotte County convictions and further stated: “4. That on the 20th day of December, 1990, a hearing was held before the Honorable Daniel A. Duncan on the State’s motion to invoke the provisions of the Habitual Criminal Act pursuant to K.S.A. 21-4504. The State presented evidence in the form of Journal Entry of Judgment and oral testimony from Officer Graham in regard to the following prior conviction: (a) On the 23rd day of March, 1989, defendant was convicted of the crime of Armed Robbery, a felony, in the court of Jackson County, Missouri, in case number CR89-1059. After considering the above matters the Court sustained the State’s motion.” In State v. Fisher, 233 Kan. 29, Syl. ¶ 4, 661 P.2d 791 (1983), we indicated: “Under the rule of collateral estoppel, when an issue of ultimate fact has once been determined by a valid and final judgment that issue cannot again be litigated between the same parties in any future lawsuit.” We see no reason why this rule should not be followed regarding prior convictions if all the elements of collateral estoppel are met. When a judgment is rendered that includes a finding of a prior conviction for purposes of the Habitual Criminal Act, a defendant may challenge whether that finding is supported by competent evidence. However, once that finding is final, a presumption of regularity attaches to that finding. State v. Patterson, 262 Kan. 481, 939 P.2d 909 (1997). No purpose would be served in allowing the defendant to later relitigate that same issue. See Justice V. Board of Wyandotte County Cormrirs, 17 Kan. App. 2d 102, 109, 835 P.2d 692, rev. denied 251 Kan. 938 (1992) (“Determinations of fact, unappealed from, are final and conclusive.”). We have often set forth the requirements of collateral estoppel: (1) a prior judgment must have been entered on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity; and (3) the issue litigated must have been determined and necessary to support the judgment. In re Estate of Beason, 248 Kan. 803, 813, 811 P.2d 848 (1991). In the present case, all the requirements of collateral estoppel regarding the Missouri conviction have been met. A prior judgment on the merits applied the Habitual Criminal Act based upon the factual finding that Kelly had a prior conviction from Missouri. The parties are the same or in privity. The issue of the prior conviction was necessary to invoke the provisions of the Habitual Criminal Act for Kelly’s 1990 convictions. Kelly primarily disputes the existence of the first element as to whether the finding of the prior conviction was one of ultimate fact. He relies on our decision in State v. Loudermilk, 221 Kan. 157, 557 P.2d 1229 (1976), that a finding of a prior conviction for sentencing purposes was not a fact to be decided by the juiy as the ultimate factfinder. Kelly argues that this means a finding regarding a prior conviction is not one of “ultimate fact” which can be applied in a later case through collateral estoppel. Kelly’s argument regarding Loudermilk is fláwed, as that case considered an entirely different issue. The issue of who must make a finding does not affect whether that finding is one of ultimate fact. Thus, the Loudermilk opinion has no bearing upon whether a finding of a prior conviction may be subject to collateral estoppel. The journal entry of judgment sustaining invocation of the Habitual Criminal Act, dated February 25, 1991, indicated the State presented evidence in the form of a journal entry of judgment and oral testimony regarding the prior Missouri conviction. The journal entry does not state whether this evidence was competent pursuant to 60-465(4). However, there is no showing that Kelly objected to or challenged this finding at that time. Thus, the finding is final and conclusive and should be regarded as competent to establish a prior conviction pursuant to 21-4504(f). Affirmed.	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The opinion of the court was delivered by Davis, J.: Hartford Accident & Indemnity Company (Hartford), the insurer of American Red Ball Transit Company, Inc., (Red Ball) filed a declaratory judgment action requesting a determination that it was not obligated to indemnify Red Ball or Albert Print-up for punitive damages. The district court held that Hartford was obligated to indemnify Red Ball, but not Printup. Hartford appeals from the court’s decision with regard to Red Ball, and Barry L. Smith, administrator of the estate of Glen C. Smith, deceased, cross-appeals from the decision with regard to Printup. We are called upon to answer the questions of whether Kansas law applies in this case; whether federal law preempts Kansas law; and, if not, whether under the facts of this case there is a Kansas policy against insuring for punitive damages. While tire parties raise and discuss additional issues, a resolution of the above three issues will resolve this case. We conclude that Kansas law applies and is not preempted by federal law. We further conclude that under the facts of this case, a state policy against insurance coverage for punitive damages exists. We, therefore, reverse the judgment that Hartford is liable under its policy for punitive damages awarded against Red Ball. In all other respects; we affirm. FACTS The underlying facts of the present case are set forth in Smith v. Printup, 254 Kan. 315, 866 P.2d 985 (1993) (Smith v. Printup I) . That same case was also the subject of a second appeal, Smith v. Printup, 262 Kan. 587, 938 P.2d 1261 (1997) (Smith v. Printup II) . Highly summarized, Albert Printup jackknifed his moving van and collided with a pickup truck, ilfing both occupants of the truck, Carolyn S. Elliott died immediately, while Glen C. Smith survived for some minutes before dying at the scene. Printup was employed by Southwest Movers, Inc., (Southwest) but had been “leased out” to Red Ball for 4 to 5 years preceding the accident. The relatives of Elliott and Smith sued Printup, Southwest, and Red Ball for wrongful death, and the administrator of the Smith estate sued the same defendants for Smith’s pain and suffering. The trial court allowed the Smith plaintiffs (Smith) to amend their complaint to seek punitive damages in accordance with K.S.A. 60-3701 against Southwest, Printup, and Red Ball in conjunction with the survivor action. In addition to awarding compensatory damages in both wrongful deaths, the jury determined that Smith was entitled to punitive damages from Red Ball and Printup but not from Southwest in Smith’s survival action. The focus of Smith v. Printup I related to punitive damages. We set aside the amount of punitive damages awarded against Red Ball and Printup, reversed the jury determination that Smith should not be awarded punitive damages against Southwest, and remanded with specific instructions. 254 Kan. at 359-60. Upon completion of. the remand proceedings, the trial court set the punitive damage award against Red Ball at $100,000 and against Printup at $20,800. A jury again determined that Southwest was not liable for any punitive damages. In Smith v. Printup II, we affirmed both the trial court’s and the jury’s determinations. Southwest is not a party to this appeal. While Printup does not respond to this appeal, the coverage issues concerning punitive damages against Red Ball and Printup remain. The policy issued by Hartford was in effect at the time of the accident and contained the necessary Interstate Commerce Commission (ICC) form BMC 90 endorsements. Both Red Ball and Printup were “insureds” under the terms of the policy. Based upon undisputed facts, the trial court determined that Hartford’s policy covered the punitive damage award against Red Ball but not the punitive damage award against Printup. While the court decided other matters, the appeals in this case involve only the question of insurance coverage for punitive damage awards against Red Ball and Printup. Additional facts necessary to resolve insurance coverage of punitive damages are set forth in the opinion. STANDARD OF REVIEW The parties do not dispute the facts. The only questions before this court involve questions of law over which this court’s review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). CHOICE OF LAW Red Ball contends that Indiana law applies because it is the state where the insurance policy was issued. See Simms v. Metropolitan Life Ins. Co., 9 Kan. App. 2d 640, 685 P.2d 321 (1984). The trial court, relying upon Norfolk & W. Ry. Co. v. Hartford Acc. & Indem. Co., 420 F. Supp. 92, 94 (N.D. Ind. 1976), determined that Indiana law required the issue of punitive damages to be determined under the law of the state with the most “intimate contact” with the transaction. Thus, the trial court held that “[t]he meritorious position of Red Ball [application of the law where the contract was entered into applies] sends us to Indiana and, under Indiana law, back to Kansas for its interpretation of the issues.” We agree that Kansas law applies but not for the reasons set forth by the trial court. The application of Kansas law is controlled by St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 777 P.2d 1259 (1989), cert. denied 493 U.S. 1036 (1990). In St. Paul, the losing defendants in a successful products liability case appealed the trial court’s decision that Kansas public policy precluded their recovery of assessed punitive damages from their liability insurers. The defendants argued that the trial court erred in applying Kansas law to deny insurance coverage of the punitive damages, relying on the lex loci rule in Simms, 9 Kan. App. 2d 640. We acknowledged Simms but noted that there is an exception to the lex loci rule where the contract contravenes the settled public policy of the state whose tribunal is invoked to enforce the contract. 245 Kan. at 269-70. Applying Kansas law and Kansas public policy, we said: “If we were to refuse to apply Kansas law on the issue of punitive damages, we would thwart the purposes for which the policy was adopted. ‘Where exemplary damages are awarded for purposes of punishment and deterrence, as is true in this state, public policy should require that payment rest ultimately as well as nominally on the party who committed the wrong; otherwise they would often serve no useful purpose. The objective to be attained in imposing punitive damages is to make the culprit feel the pecuniary punch, not his guiltless guarantor.’ Koch v. Merchants Mutual Bonding Co., 211 Kan. [397, 405, 507 P.2d 189 (1973)]. "The objective of the policy is to prevent wrongful acts against the citizens of the State of Kansas. . . . “A finding that Kansas public policy does not apply to the punitive damages in the O’Gilvie action would effectively excuse [the corporate defendant] from the consequences of its reckless behavior with this state. Failure to apply Kansas law would establish an undesirable precedent for other tort and product liability actions. In any product liability action which involves an out-of-state manufacturer, the manufacturer could avoid the application of Kansas public policy where the manufacturer had contracted outside the State of Kansas for insurance of punitive damages. This would result in the uneven application of the public policy. Kansas tortfeasors would be required to feel the ‘pecuniary punch’ while out-of-state tortfeasors could require their ‘guiltless’ insurance companies to pay such damages. Out-of-state tortfeasors who contracted with out-of-state carriers would, therefore, not be subject to deterrence for committing reckless acts in Kansas.” 245 Kan. at 272-73. In St. Paul, the injured party was a Kánsas resident fatally injured by a defective product that was used in Kansas. Here, two Kansas residents were fatally injured in an accident that occurred in Kansas. The argument that application of Indiana law is necessary to maintain a uniform interpretation of the insurance policy Red Ball contracted with Hartford finds support in the traditional notions underlying the lex loci rule. However, the interest of Kansas exceeds Indiana’s interest in the resolution of the instant controversy. See 245 Kan. at 270. FEDERAL PREEMPTION Generally, federal preemption of state law occurs only if state law conflicts with or frustrates the federal scheme or Congress sought to occupy the field to the exclusion of the states. There is a reluctance to infer preemption, and there is an assumption that Congress did not intend to displace state law. Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R.I., Inc., 507 U.S. 218, 122 L. Ed. 2d 565, 113 S. Ct. 1190 (1993). The parties do not suggest that Congress has expressly preempted this field. Neither do the parties argue that Congress has sought to occupy the field to the exclusion of the states. Instead, Smith argues that state law conflicts with the federal law and, thus, the preemption doctrine applies. We have recently reviewed the federal preemption doctrine in Jenkins v. Amchem Products, Inc., 256 Kan. 602, 607-08, 886 P.2d 869 (1994), cert. denied 133 L. Ed. 2d 38 (1995). Jenkins affirms the general rule regarding preemption: “The doctrine of federal preemption is founded on the Supremacy Clause, U.S. Const, art. VI, cl. 2: ‘This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Thus, any ‘state law that conflicts with federal law is “without effect.” ’ Cipollone v. Liggett Group,. Inc., 505 U.S. 504, 120 L. Ed. 2d 407, 422, 112 S. Ct. 2608 (1992). The preemption analysis presumes that police powers historically left to the states are not superseded by federal law. [Citations omitted.] The presumption against federal preemption of state law may be overcome if Congress intended preemption. [Citations omitted.] Preemption may be express or implied: ‘Congress’ intent may be “explicitly stated in the statute’s language or implicitly contained in its structure and purpose.” [Citation omitted.] In the absence of an express congressional command, state law is pre-empted' if that law actually conflicts with federal law [citation omitted], or if federal law so thoroughly occupies a legislative field “ ‘as to make reasonable the inference that Congress left no room for the States to supplement it.’ ” [Citations omitted.]’ Cipollone, 420 L. Ed. 2d at 422-23.” In Elkins v. Showcase, Inc., 237 Kan. 720, 704 P.2d 977 (1985), we discussed the meaning of conflict between federal and state law in regards to preemption. We said that the conflict between the two laws must be positive and direct in order to make coexistence of the two laws an impossibility. It is necessary that the state law in its application to the same field contravene federal public policy or cause a different result or consequence. 237 Kan. at 727; see Watkins v. H.O. Croley Granary, 555 F. Supp. 458, 460 (N.D. Ga. 1982). In Goben v. Barry, 237 Kan. 822, Syl. ¶ 3, 703 P.2d 1378 (1985), we said: “In making a determination of federal preemption, a court should examine those concerns emphasized by Congress in enacting the legislation. State law should be preempted only to the extent necessary to protect achievement of the purposes of the federal act in question.” The federal Motor Carrier Safety Act, 49 U.S.C. § 10927 (1994), provides in relevant part: “(a)(1) The [Interstate Commerce] Commission [ICC] may issue a certificate under section 10922 or 10530 or a permit under section 10923 only if the carrier . . . applying for such certificate files with the Commission a bond, insurance policy, or other type of security approved by the Commission, in an amount not less than such amount as the Secretary of Transportation prescribes .... The security must be sufficient to pay, not more than the amount of the security, for each final judgment against the carrier for bodily injury to, or death of, an individual resulting from the negligent operation, maintenance, or use of motor vehicles under the certificate or permit, or for loss or damage to property ... or both.” Pursuant to this statutory authority, the ICC promulgated regulations in 49 C.F.R. § 1043 (1995), relating to insurance coverage, and 49 C.F.R. § 1057 (.1995), regarding the lease and interchange of vehicles among motor carriers. Section 1043 requires that all interstate motor carriers obtain a certificate with the ICC. The regulations specify that “no certificate or permit shall be issued to such a carrier or remain in force unless and until there shall have been filed with and accepted by the Commission surety bonds, certificates of insurance, proof of qualifications as self-insurer, or other securities or agreements, in the amounts prescribed in § 1043.2, conditioned to pay any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from the negligent operation, maintenance or use of motor vehicles in transportation subject to subchapter II, chapter 105, subtitle IV of title 49 of the U.S. Code, or for loss of or damage to property of others . . . .” 49 C.F.R. § 1043.1(a)(1). (Emphasis added.) The ICC regulations provide for minimum dollar amounts of coverage. 49 C.F.R. § 1043.2. In addition, “[e]ach policy of insurance in connection with the certificate of insurance which is filed with the Commission, shall be amended by attachment of the appropriate endorsement prescribed by the Commission or the Department of Transportation and the certificate of insurance filed must accurately reflect that endorsement.” 49 C.F.R. § 1043.6(c). The same minimum insurance coverage is required from a carrier who leases vehicles from another interstate carrier. 49 C.F.R. § 1057.12(j)(l) (1995). There is a clear consensus among jurisdictions regarding the policy underlying 49 U.S.C. § 10927. One court stated the purpose as follows: “The purpose of ICC statutory law and regulations is to ensure that a financially responsible party will be available to compensate third persons injured in a collision with an ICC carrier.” Maryland Cas. Co. v. City Delivery Service, Inc., 817 F. Supp. 525, 530 (M.D. Pa. 1993). The United States Supreme Court discussed the policy behind the financial responsibility statute and rules promulgated by the ICC thereunder: “It is apparent . . . that sound transportation services and the elimination of the problem of a transfer of operating authority, with its attendant difficulties of enforcing safety requirements and of fixing financial responsibility for damage and injuries to shippers and members of the public, were the significant aims and guideposts in the development of the comprehensive rules.” Transamerican Freight v. Brada Miller, 423 U.S. 28, 37, 46 L. Ed. 2d 169, 96 S. Ct. 229 (1975). See Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F.2d 304, 312 (5th Cir. 1978); Carolina Cas. Ins. Co. v. Transport Indem. Co., 533 F. Supp. 22 (D.S.C. 1981), aff’d 676 F.2d 690 (4th Cir.), cert. denied 459 U.S. 829 (1982). See also Canal Ins. Co. v. First General Ins. Co., 889 F.2d 604, 610 (5th Cir. 1990) (“[T]he ICC is empowered to promulgate regulations to insure that motor carriers operating tractors or trailers as lessees under leasing arrangements . . . assume total responsibility for the operation of their rented vehicles, including obtaining adequate insurance.”). With one exception, the parties do not cite to any case that suggests a different legislative purpose. That exception, Alford v. Major, 470 F.2d 132, 135 (7th Cir. 1972), addressed the broader policy underlying the passage of the entire Federal Motor Carrier Safety Act requiring the maintenance of leased equipment and the supervision of borrowed drivers. A majority of jurisdictions have held that there is a limit to the extent of this federal policy and that 49 U.S.C § 10927 does not preempt all state law or regulations relating to insurance coverage of interstate motor carriers. For example, the Seventh Circuit Court of Appeals, in discussing the doctrine of federal preemption with regard to the question of which carrier provided primary coverage, said: “The purpose of the federal statute and regulations is to ensure that an ICC carrier hás independent financial responsibility to pay for losses sustained by the general public arising out of its trucking operations. However, once it is clear that there are sufficient funds available to safeguard the public, the inquiry changes; ‘[t]he pertinent question is whether the federal policy of assuring compensation for loss to the public prevents courts from examining the manner in which private agreements or state laws would otherwise allocate the ultimate financial burden of the injury.’ [Carolina Cas. Ins. Co. v.] Insurance Co. of North America, 595 F.2d [128,] 138 [(3d Cir. 1979)] (emphasis added). We agree with the majority view that l.C.C. public policy factors are frequently determinative where protection of a member of the public is at stake, but those factors cannot be invoked by another insurance company which contracted to insure a specific risk and which needs no equivalent protection.’ [Carolina Cas. Ins. Co. v.] Underwriters [Ins. Co,] 569 F.2d [302,] 313 [(1978)]. Thus, we hold that ICC policy does not alter the application of the Indiana statute, which places primary coverage on [the defendants]. We would emphasize, however, that were it not for the Indiana statute, the policy provisions as to coverage would be controlling.” Travelers Ins. Co. v. Transport Ins. Co., 787 F.2d 1133 (7th Cir. 1986). American Surety Company of New York v. Gold, 375 F.2d 523 (10th Cir. 1966), provides some help in analyzing the preemption question. In that case, the insurance company acknowledged its responsibility for compensatory damages assessed against its insured but denied any liability for punitive damages. The court acknowledged Kansas’ policy against insurance for punitive damages. The court rejected the argument that a Kansas public policy against insurance for punitive damages was superseded by the Kansas Motor Vehicle Safety Responsibility Act. 375 F.2d at 527-28. The Gold court stated that the legislative purpose of acts like the Kansas Motor Vehicle Safety Responsibility Act is “ To provide compensation for innocent persons that might be injured through faulty operation of motor vehicles.’ ” 375 F.2d at 527. Here, the purpose of the federal act, not unlike the Kansas Motor Vehicle Safety Responsibility Act, is to require adequate security or insurance from those operating under an ICC certificate in order that members of the public will be fairly compensated for losses oc curring by reason of the negligent operation of ICC vehicles traveling throughout the country. The key under both the state and federal law is compensation. The federal Motor Carrier Safety Act uses language which relates to security for compensating injured persons by reason of negligent operation: “The security must be sufficient to pay, not more than the amount of the security, for each final judgment against the carrier for bodily injury to, or death of, an individual resulting from the negligent operation, maintenance, or use of motor vehicles under the certificate or permit, or for loss or damage to property ... or both.” (Emphasis added.) 49 U.S.C. § 10927. The purpose of the Act is to ensure that financial security will be available to compensate injured parties. Maryland Cas. Co., 817 F. Supp. at 530. The federal Motor Carrier Safety Act contains no language which expressly includes or excludes punitive damages. We understand the argument of Smith to be that the language in the Act “each final judgment” directly conflicts with Kansas law because such language requires coverage of punitive damages. Thus, we inquire whether Congress has provided any information concerning its intent with regard to punitive damage coverage. The predecessor of 49 U.S.C. § 10927 is § 215 of the federal Motor Carrier Act, 1935. Act of Aug. 9, 1935, ch. 498, § 215, 49 Stat. 557 (1935). The first sentence of this section stated: “No certificate or permit shall be issued to a motor carrier or remain in force, unless such carrier complies with such reasonable rules and regulations as the Commission shall prescribe governing the filing and approval of surety bonds, policiés of insurance, qualifications as a self-insurer or other securities or agreements, in such reasonable amount as the Commission may require, conditioned to pay, within the amount of such surety bonds, policies of insurance, qualifications as" a self-insurer or other securities or agreements, any final judgment recovered against such motor carrier for bodily injuries to or the death of any person resulting from fhe negligent operation, maintenance, or use of motor vehicles under such certificate or permit, or for loss or damage to property of others.” (Emphasis added.) Neither the parties nor our independent research has located specific guidance on the question of whether Congress intended to include punitive damages. The Congressional Record of 1935, which details the events occurring on the floors of the U.S. House and Senate, is silent with regard to the language in question. In addition, the contemporary legislative compilation, Wagner, A Legislative History of the Motor Carrier Act, ,1935 (1935), in its discussion on pages 67-68 of relevant statements of legislators on certain words and phrases, does not provide any insight on whether Congress intended to include punitive damages or even whether Congress considered thé issue of punitive damages. Moreover, the Hawkins Index-Digest-Analysis of Decisions under the Interstate Commerce Act does not report any agency decisions on the issue of insurance of punitive damages under the federal Motor Carrier Act. Although Congress has made changes in the above language and related sections of the Act, it consistently has stated that no substantive change in the law was intended. See, e.g., H.R. Rep. No. 95-1395 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 3009, 3013 (“The purpose of the bill is to restate in comprehensive form, without substantive change, the Interstate Commerce Act and related laws .... In the restatement, simple language has been substituted for awkward and obsolete terms, and superseded, executed, and obsolete statutes have been eMminated.”). Legislative history notes following 49 U.S.C. § 10927 explain that for clarity, the word “each” replaced “any.” Lacking any express evidence of congressional intent, wé return to the basic policy concerns emphasized by Congress in passing § 10927 of the federal Motor Carrier Safety Act. See Goben v. Barry, 237 Kan. 822, Syl. ¶ 3. As previously stated, the purpose was “to ensure that a financially responsible party will be available to compensate third persons injured in a collision with an ICC carrier.” Maryland Cas. Co., 817 F. Supp. at 530. Ensuring that a financially responsible party is available when a member of the public is injured by an interstate motor carrier does not conflict with the application of Kansas’ public policy concerning insurance coverage for punitive damages. Federal law requires that adequate security or insurance coverage be available for any compensatory damages suffered by the public. Punitive damages are in effect a windfall to an injured plaintiff and are intended to punish a wrongdoer rather than protect the injured party. We conclude that the doctrine of federal preemption does not prevent the application of Kansas law and policy on the issue of insurance coverage for punitive damages. INSURANCE COVERAGE FOR PUNITIVE DAMAGES As discussed above, the public policy against the insurability of punitive damages by a wrongdoer was first expressed in Koch v. Merchants Mutual Bonding Co., 211 Kan. 397, 507 P.2d 189 (1973). The policy was extended in Guarantee Abstract & Title Co. v. Interstate Fire & Cos. Co., 228 Kan. 532, 618 P.2d 1195 (1980). In that case, an employer argued that the policy did not apply in cases where an employer was assessed punitive damages vicariously. The court stated: “[W]e reject such a rule, regardless of whether liability is incurred vicariously or directly. It is against the public policy of this state to allow a wrongdoer to purchase insurance to cover punitive damages [citation omitted], and we interpret that rule to include any person who has incurred such liability regardless of whether the liability resulted from the insured’s own acts or those of his employee, servant or agent.” 228 Kan. at 535. After Guarantee was decided, a bill involving insurance coverage for punitive damages was introduced in the Kansas House in 1983. The bill was enacted during the following legislative session and became K.S.A. 40-2,115. The legislative history of K.S.A. 40-2,115 demonstrates that it was enacted in reaction to our decision in Guarantee. K.S.A. 40-2, 115(a) provides: “It is not against the public policy of this state for a person or entity to obtain insurance covering liability for punitive or exemplary damages assessed against such insured as the result of acts or omissions, intentional or otherwise, of such insured’s employees, agents or servants, or of any other person or entity for whose acts such insured shall be vicariously liable, without the actual prior knowledge of such insured.” This statute was introduced prior to our decision in Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983), but did not pass until after Kline was decided. The time line involved in the enactment of K.S.A. 40-2, 115 is as follows: 2-24-83 Representative Vancrum testified regarding H.B. 2062 (a version of what was to become K.S.A. 40-2,115) that the bill was intended to very simply reverse the ruling in the Guarantee Abstract case. 7-15-83 Opinion in Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983), announced. 2-24-84 Representative Vancrum again testified regarding H.B. 2876 (a version of what was to become K.S.A. 402,115): “The bill would merely reverse the 1980 Supreme Court ruling in the Guarantee Abstract case.” 4-26-84 Effective date of K.S.A. 40-2,115. The legislative history involving K.S.A. 40-2,115 does not mention or make reference to our decision in Kline. Kline involved the following certified question from the United States District Court for the District of Kansas: “ ‘Under Kansas law, may a corporation be held hable for punitive damages arising from an act of an agent or employee, within the scope of the agent’s or employee’s employment, when the corporation, through its board of directors or an officer, has neither directed, authorized nor ratified the act.’ ” 233 Kan. at 989. The plaintiff in Kline urged this 'court to adopt a “vicarious liability” rule that a corporation be held liable for punitive damages whenever the employee, acting within the scope of employment, is hable. We considered the deterrence aspect of this rule and recognized that the vicarious liability rule was “followed by a majority of the courts.” 233 Kan. at 990.. As a second possible answer to the certified question, we recognized what has been referred , to as the “complicity rule” expressed in Restatement (Second) of Torts § 909 (1977). This rule basically provides that “a corporation might be held hable for punitive damages resulting from acts of its employees only when it has directed or ratified those acts.” 233 Kan. at 990. After a thorough discussion of the merits of each rule, we held: “We hereby adopt the complicity rule set out in the Restatement (Second) of Torts § 909 (1977). Although couched in terms of master’s and principal’s liability for punitive damages arising out of acts of servants and agents, the rules are equally applicable to corporations. “Thus we answer the certified question. A corporation is not hable for punitive damages for an employee’s tortious acts committed within the scope of his employment unless (a) the corporation or its managerial agent authorized the doing and manner of the act; (b) the employee was unfit and the corporation or its managerial agent was reckless in employing or retaining him; (c) the employee was employed in a managerial capacity and was acting in the scope of employment; or (d) the corporation or its managerial agent ratified or approved the act of the employee.” 233 Kan. at 994. The complicity rule has been followed by this court in Smith v. United Technologies, 240 Kan. 562, 731 P.2d 871 (1987) (upholding punitive damage award against corporation based upon acts by managerial personnel in the scope of their employment); Gould v. Taco Bell, 239 Kan. 564, 571, 722 P.2d 511 (1986) (defendant corporation held liable for punitive damages where managerial personnel’s acts were wanton); and Plains Resources, Inc. v. Gable, 235 Kan. 580, 682 P.2d 653 (1984) (upholding award of punitive damages against corporation where corporate employer was liable for negligent hiring and also directed and ratified tortious acts of employee); see Southern American Ins. v. Gabbert-Jones, Inc., 13 Kan. App. 2d 324, 769 P.2d 1194 (1989). In 1987, the Kansas Legislature partially adopted the complicity rule set forth in Kline. K.S.A. 60-3701. Under the provisions of K.S.A. 60-3701(d), the legislature provided; “In no case shall exemplary or punitive damages be assessed pursuant to this section against: (1) a principal or employer for the acts of an agent or employee unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the principal or employer.” While K.S.A. 60-3701 narrowed our holding in Kline by specifying that only under certain circumstances may punitive damages be assessed against an employer for the conduct of its employees, the statute partially expresses the complicity rule adopted by this court in Kline. K.S.A. 60-3701(d)(l) limits punitive damages assessed to an employer only in circumstances where the employer has ratified or authorized the act of the employee. Since our decision in Kline, the policy of Kansas regarding assessment of punitive damages against a corporation is that such damages may be assessed in accord with the complicity rule but not upon a vicarious liability rule. The enactment of K.S.A. 40-2,115, after our decision in Kline, permits the purchase of insurance for punitive damages under a vicarious liability rule. K.S.A. 40-2,115 was passed in reaction to Guarantee, 228 Kan. 532, but the legislature did not consider our decision in Kline. Kline controls from the date of the decision in 1983. Since K.S.A. 40-2,115 was passed in 1984 and was based upon a vicarious liability rule, the statute has no effect in Kansas in cases where punitive damages are awarded on the basis of the complicity rule expressed in Kline. K.S.A. 40-2,115(a) conflicts with our decision in Kline and also conflicts with the provisions of K.S.A. 60-3701(d) passed by the Kansas Legislature in 1987. In Kansas, a corporation may be held liabile for its own wanton acts. Flint Hills Rural Elec. Co-op Ass’n v. Federated Rural Elect. Ins. Corp., 262 Kan. 512, 941 P.2d 374 (1997); Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 366, 837 P.2d 330 (1992). However, since our decision in Kline, and presently under the provisions of K.S.A. 60-3701(d), a corporation may not be held liable for the wanton acts of its employee unless under the complicity rule. There is no corporate employer liability under the complicity rule and K.S.A. 60-3701(d) “unless the questioned conduct was authorized or ratified by a person expressly empowered to do so on behalf of the . . . employer.” K.S.A. 60-3701(d)(1). The provisions of K.S.A. 40-2,115(a) do not apply in this case. There remains in Kansas, under the facts of this case, a policy against insurance coverage for punitive damages. That policy is best expressed in St. Paul Surplus Lines Ins. Co. v. International Playtex, Inc., 245 Kan. 258, 273, 777 P.2d 1259 (1989): “A finding that Kansas public policy does not apply to the punitive damages in the O’Gihie action would effectively excuse [the corporate defendant] from the consequences of its reckless behavior within this state. Failure to apply Kansas law would establish an undesirable precedent for other tort and product liability action. . . . This would result in die uneven application of the public policy. Kansas tortfeasors would be required to feel the ‘pecuniaiy punch’ while out-of-state tortfeasors could require their ‘guildess’ insurance companies to pay such damages. Out-of-state tortfeasors who contracted with out-of-state carriers would, therefore, not be subject to deterrence for committing reckless acts in Kansas.” The same Kansas policy also applies in the case of the driver, Printup: “Where exemplary damages are awarded for purposes of punishment and deterrence, as is true in this state, public policy should require that payment rest ultimately as well as nominally on the party who committed the wrong; otherwise they would often serve no useful purpose. The objective to be attained in imposing punitive damages is to make the culprit feel the pecuniary punch, not his guiltless guarantor.” Koch, 211 Kan. at 405. The awards in this case apply separately to the employer and employee. As we said in Smith v. Printup I, 254 Kan. 315, 356, 866 P.2d 985 (1993): “Each wrongdoer is liable to pay the punitive damages assessed against him or her. The amount of the award is to be calculated with the individual defendant’s financial status and conduct in mind. . . . Joint and several liability undermines these considerations and therefore is unavailable.” Permitting insurance coverage of the punitive damages for Red Ball and Printup in this case would violate Kansas law and public policy. This is particularly true in the case of Red Ball wherein liability is based upon the complicity rule set forth in K.S.A. 60-3701(d)(1). We conclude that Hartford’s insurance policy does not cover the punitive damage awards against Red Ball or Printup. Accordingly, we reverse the part of the trial court’s judgment holding that Hartford is liable for punitive damages awarded against Red Ball. In all other respects, we affirm the decision of the trial court. Affirmed in part and reversed in part.	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The opinion of the court was delivered by Six, J.: The primary issue in. this felony-murder case arises from defendant Michael J. Mitchell’s claim that the district court erred in failing to instruct the jury on self-defense. Mitchell also claims error for the failure to give PIK Crim. 3d 68.07 (jury must decide each of two charges separately). Neither instruction was requested at trial. Mitchell, a cocaine seller with a handgun, was convicted under K.S.A. 21-3401 for the felony murder of Donald Beebe, a cocaine buyer with a handgun. Beebe’s death resulted from a sale “gone wrong.” Mitchell was also convicted of felony possession of cocaine (2 weeks after the homicide), under K.S.A. 1996 Supp. 65-4160. Our jurisdiction is under K.S.A. 22-3601(b)(l) (a sentence of life imprisonment). We affirm, finding no error on the self-defense instruction issue and no reversible error on the failure to give PIK Crim. 3d 68.07. FACTS Barbara Williams and Nathaniel Pete Hill had been “doing” crack obtained from Mitchell. Early in the morning of December 15,1994, they met a truck driver (Beebe) who said he was looking for an “eight-ball” of crack (approximately Vs ounce of rock cocaine) and asked if they knew where to get any. Hill thought Beebe was acting strange, like “in a rush to get high.” Beebe told them that he would give them some crack if they would help him get it. Williams and Hill each contacted Mitchell. Mitchell arrived with Hill and parked in front of the truck. Hill got in the cab with Beebe and Williams. Mitchell stood on the passenger side of the cab with the door open. Beebe told Mitchell to shut the door. Mitchell climbed into the passenger seat. Mitchell showed a baggie containing cocaine and gave a “20” to Beebe, who smoked it in a glass pipe. Mitchell wanted his money. Beebe said he wanted to talk to Mitchell alone to do some business and asked Williams and Hill to leave, which they did. Beebe and Mitchell moved back to the cab’s sleeper area and pulled the curtain. Williams and Hill sat on the curb in front of Mitchell’s car. Williams heard the first loud shot and looked up to see the curtain in the truck blowing up, as if over an open window. She heard three or four loud shots, with a second or two pause between the first and second shots and the later shots being closer together. She saw Mitchell get out of the truck looking angry, walk to his car, and drive off slowly and calmly. Neither she nor Hill returned to the truck. They went to Mitchell’s house, because Hill wanted to see if Mitchell was hurt. Mitchell’s right leg was bleeding. Williams saw a .357 revolver that Mitchell threw on the bed. She did not see any other weapons. Mitchell said he did not know Beebe had a gun and that Beebe shot him with a .25 caliber pistol. He said he needed to go to the hospital and left. At trial, Hill described hearing the gunshots. First, he heard a “small sound” and then three big sounds “all. together.” Hill also saw the .357 revolver on the bed at Mitchell’s house afterwards. Mitchell showed Hill a .25 caliber pistol. Hill had previously seen Mitchell with the .357 revolver, a Smith and Wesson, but had never seen him with a .25 caliber pistol before. A surgeon testified that on December 15, 1994, Mitchell was treated in the emergency room for a gunshot wound in the right thigh. Mitchell told the surgeon that he had been robbed and shot at a street comer. The homicide investigation began on the evening after the shooting, when the police opened the passenger door of the track and found Beebe’s body in the sleeper area of the cab. The autopsy revealed three gunshot wounds: one in the left side of the back, and two in the back of the head. Soot deposits on Beebe’s jacket at the gunshot wound locations revealed that the two gunshots to the back of the head were at close range. Powder deposits showed that the wound to the back was also from a gunshot, at close range. Police searched the track and found a partial box of .25 caliber bullets (five were missing) in the overhead compartment. The sleeper area showed evidence of a straggle. Beebe’s widow testified that Beebe told her he had purchased a .25 caliber pistol in November 1994 and carried it to protect himself. The investigation shifted to Mitchell’s house. A residential narcotics search warrant was executed on December 30,1994. Mitchell answered the door, attempted to escape, and was apprehended in the basement. He had crack cocaine in a plastic bag and $490 in cash in his pockets. Police questioned Mitchell about the Beebe homicide. Mitchell initially denied involvement, but then admitted struggling with Beebe inside the cab and being wounded. Mitchell said that Hill and Williams had come to his house and told him a truck driver wanted to buy $150 worth of crack cocaine. Mitchell went to the truck driver to talk about the cocaine. Mitchell claimed the truck driver shot him with a .25 caliber pistol before Hill fired a .357 revolver. The police interviewed Hill and Williams separately. They described Mitchell’s involvement in the shooting. Hill denied firing any weapon. Mitchell later appeared at police headquarters with his attorney to give another statement. Mitchell said that Hill came to his house and told him a truck driver (Beebe) had marijuana for sale. Mitchell was interested, had $500 for the purchase, and went to see Beebe. Beebe pulled a .357 revolver and tried to rob Mitchell. Mitchell struggled with Beebe in the sleeper area. Williams and Hill stood outside. Mitchell claimed the revolver went off during the struggle. Mitchell would not admit taking the gun away from Beebe. The detective who took Mitchell’s statement was skeptical of Mitchell’s story and could not see how Beebe was shot in the back of the head while still struggling over the gun. Mitchell did not testify at trial or present any witnesses. The two statements he gave to police were admitted into evidence. Mitchell’s motion for a new trial asserted for the first time that a self-defense instruction should have been given. The district judge, in denying the motion, responded: “[T]hat is not a defense, as I understand it, in a felony murder case, so that being the case, I think all of these grounds alleged by the defendant are without merit.” DISCUSSION The Self-Defense Instruction The primary issue is whether the district court erred in failing to instruct on self-defense. Mitchell acknowledges that because the instruction was not requested, the “clearly erroneous” standard of review applies. See K.S.A. 22-3414(3); State v. DePriest, 258 Kan. 596, Syl. ¶ 4, 907 P.2d 868 (1995). K.S.A. 21-3214(1) provides that the defense of self-defense under K.S.A. 21-3211 is not available to a person who “[i]s attempting to commit, committing, or escaping from the commission of a fore ible felony.” (Emphasis added.) We recently applied this statute in State v. Shortey, 256 Kan. 166, 173-74, 884 P.2d 426 (1994) (commission of a forcible felony precludes the giving of a self-defense instruction). After robbing a gas station, Shortey was apprehended in his car by police. A struggle followed between the two officers and Shortey. Before being subdued, Shortey pulled one of the officer’s guns, from the holster and pointed it at the officer. Although no self-defense instruction was requested at trial, on appeal, Shortey unsuccessfully argued that he should have been allowed to assert self-defense as to the aggravated assault on a law enforcement officer charge. K.S.A. 21-3110(8) provides: “ ‘Forcible felony’ includes any treason, murder, voluntary manslaughter, rape, robbery, burglary, arson, kidnapping, aggravated battery, aggravated sodomy and any other felony which involves the use or threat of physical force or violence against any person.” First-degree felony murder means the killing of a human being committed “in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 21-3436 and amendments thereto.” K.S.A. 21-3401(b). K.S.A: 21-3436 (a)(14) defines as an inherently dangerous felony “any felony offense as provided in . . . K.S.A. 1995 Supp. 65-4160 through 65-4164 and amendments thereto.” Mitchell’s felony-murder charge alleged sale of cocaine as the inherently dangerous felony. Mitchell acknowledges that sale of cocaine is an inherently dangerous felony under K.S.A. 21-3436(a)(14), and is therefore a sufficient underlying crime for felony murder. He argues, however, that sale of cocaine is not a K.S.A. 21-3110(8) forcible felony; therefore, self-defense should be available to him. According to Mitchell, the sale of cocaine is a consensual crime, so it cannot be “forcible.” We disagree. We examine the interplay of the theory of self-defense and the statutory definitions of “forcible” and “inherently dangerous” felonies. Our analysis of Mitchell’s primary contention commences with the statutory authorization for self-defense. K.S.A. 21-3211 provides: “A person is justified in the use of force against an ag gressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” The recent history of the felony-murder statute merits discussion. We described the 1969 and 1972 statutory changes in State v. Hoang, 243 Kan. 40, 43, 755 P.2d 7 (1988): “In 1969, the Kansas Legislature adopted the new criminal code, replacing K.S.A. 21-401 (Conick) with K.S.A. 21-3401. L.1969, ch. 180, § 21-3401. In so doing, the revised statute eliminated the enumeration of felonies which specifically gave rise to the application of the felony-murder doctrine. In 1972, K.S.A. 21-3401 was amended to its present form which provides that murder in the first degree is ‘the killing of a human being ... in the perpetration or attempt to perpetrate any felony.’ L. 1972, ch. 112, § 1.” We expressed the following concern with the 1972 version of the felony-murder statute in State v. Lashley, 233 Kan. 620, 631, 664 P.2d 1358 (1983): “A literal reading of this statute would find any felony to be sufficient to support a charge of felony murder if a causal relation exists. The purpose of the statute is to deter those engaged in felonies from killing negligently or accidentally, and that doctrine should not be extended beyond its rational function which it was designed to serve.” Before the 1992 amendment to K.S.A. 21-3401 (murder in the first degree) and the enactment of K.S.A. 21-3436 (inherently dangerous felony), courts looked to the K.S.A. 21-3110(8) definition of forcible felony in determining whether the underlying felony in a felony-murder case was inherently dangerous. See, e.g., State v. Lucas, 243 Kan. 462, 466, 759 P.2d 90 (1988), aff’d on reh. 244 Kan. 193, 767 P.2d 1308 (1989), (“Clearly, all of the crimes specifically designated [in K.S.A. 21-3110(8)] would supply the requisite underlying felony for a felony-murder conviction unless the doctrine of merger applies.”); and State v. Strauch, 239 Kan. 203, 216, 718 P.2d 613 (1986), where aggravated criminal sodomy was held to be an inherently dangerous felony to support a felony-murder charge (“The underlying felony in the felony-murder rule must be a forcible felony, one inherently dangerous to human life.”). If the underlying felony fit within those listed in K.S.A. 21-3110(8), the determination was straightforward. However, if none of the crimes listed in K.S.A. 21-3110(8) applied and the catchall portion of the definition (“any other felony which involves the use or threat of physical force or violence against any person”) had to be applied, the determination became more problematic. In State v. Wesson, 247 Kan. 639, 802 P.2d 574 (1990), cert. denied 501 U.S. 1236 (1991), we considered whether an attempted crack cocaine sale could serve as the underlying felony to support a charge of felony murder under K.S.A. 1989 Supp. 21-3401 (which contained the “killing of a human being ... in the perpetration of or attempt to perpetrate any felony” language). Wesson was convicted of felony murder and attempted sale of crack cocaine. The victim, who had been stabbed many times in the chest, was found in an automobile with the engine running, slumped against the steering wheel. Traces of cocaine and a pipe were found. Witnesses had observed Wesson leaning in the victim’s car window with a knife in his hand. Wesson admitted trying to sell crack cocaine to the victim. We reversed the felony-murder conviction and remanded, reasoning that there is nothing inherently violent or forcible in the sale of crack cocaine. We also concluded that a sale of crack cocaine, when viewed in the abstract, is not inherently dangerous. 247 Kan. at 645-47. In 1990, the legislature amended K.S.A. 21-3401, expanding the felony-murder definition to specifically include killing of a human being committed “in the perpetration of, attempt to perpetrate, or as a result of the commission of any felony offense as provided in K. S.A. 65-4127a or 65-4127b [the predecessor statutes to K.S.A. 1996 Supp. 65-4160 through 65-4164], and amendments thereto.” L. 1990, ch. 100, § 2. The 1990 amendment to the felony-murder statute legislatively overruled Wesson. In 1992, the legislature accepted Wesson’s invitation to adopt a more specific first-degree felony murder statute (247 Kan. at 646). K.S.A. 21-3401 was totally revised to define felony murder as the killing of a human being committed "in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in [K.S.A. 1993 Supp. 21-3436] and amendments thereto.” L. 1992, ch. 298, § 3. As part of that same law, K.S.A. 1993 Supp. 21-3436, statutorily defining specific crimes as inherently dangerous felonies (including at subparagraph [17] “any felony offense as provided in K.S.A. 65-4127a, 65-4127b or 65-4159”), was enacted. L. 1992, ch. 298, § 77. With the 1992 amendment, the legislature came full circle. Once again, the legislature has specifically enumerated the felonies giving rise to the felony-murder doctrine, rather than leaving to the courts the task of sorting out what crimes should be considered as inherently dangerous felonies in felony-murder cases. See State v. Gayden, 259 Kan. 69, 76, 910 P.2d 826 (1996), for further discussion of the 1992 legislative changes. The statutory definition of forcible felony, first contained in L. 1969, ch. 180, § 21-3110, has remained unchanged. The crimes listed as forcible felonies in K.S.A. 21-3110(8) do not overlap completely with those listed as inherently dangerous felonies in K.S.A. 21-3436. Child abuse (K.S.A. 21-3436[7]), felony theft under subsection (a) or (c) of K.S.A. 21-3701 (K.S.A. 21-3436[8]), drug-related felonies (K.S.A. 21-3436[14]), and criminal discharge of a firearm in violation of K.S.A. 21-4219 (K.S.A. 21-3436[15]) are crimes listed as inherently dangerous felonies but not expressly listed as forcible felonies under K.S.A. 21-3110(8). Our past consideration of crimes not listed in both categories helps in resolving the present issue. In Lucas, 243 Kan. at 466, in comparing the crime of abuse of a child (as defined by K.S.A. 1987 Supp. 21-3609) to the statutory definition of forcible felony in K.S.A. 21-3110(8), we said: “Clearly, abuse of a child ... is a felony inherently dangerous to human life.” In Lashley, 233 Kan. at 633, we decided that felony theft under subsections (a) or (c) of K.S.A. 21-3701 qualified as a forcible felony under the catchall definition in K.S.A. 21-3110(8) and was therefore inherently dangerous. K.S.A. 21-3436(8) is a codification of Lashley. Sale of cocaine is the only felony now included in K.S.A. 21-3436 as an inherently dangerous felony that we previously have held was not a forcible felony (although in the pre-1992 amendment context of determining whether it was an inherently dangerous felony). All of the other felonies listed in K.S.A. 21-3436 would also qualify as forcible felonies. The State asserts that there should be no distinction between inherently dangerous felonies and forcible felonies. Case law be fore the 1992 enactment of K.S.A. 21-3436 supports that argument. However, lack of total overlap (although almost total) between statutorily defined inherently dangerous felonies and forcible felonies leaves open the question raised by Mitchell: Did K.S.A. 21-3436 create a distinction, at least concerning the drug transaction crimes included in subparagraph (14)? The State argues that drug transaction crimes should not be the exclusive exception to the rule that self-defense is not available in felony-murder cases, because, otherwise, the purpose of making drug transactions a supporting crime for felony murder would be undermined. The 1990 amendment to K.S.A. 21-3401 and the 1992 enactment of K.S.A. 21-3436(14) show that the legislature emphatically intended to extend the felony-murder doctrine to killings occurring during drug transactions. Officer Hernandez (who participated in Mitchell’s apprehension and arrest) testified that it was “very common” for someone involved in narcotics activity to carry a weapon. A shooting during a drug transaction would not be. unexpected. The legislative overhaul of the felony-murder statute in 1992 requires us to re-examine the reasoning applied in Wesson and the “abstract approach” announced in State v. Underwood, 228 Kan. 294, 306, 615 P.2d 153 (1980). If the felony sale of cocaine is viewed in the abstract, as it was in Wesson, then it does not fit within the catchall definition of a forcible felony. The elements of that crime do not involve any threat or use of physical force or violence against any person, although threat, force, or violence may frequently be involved in cocaine sales on the street. Courts no longer have the task of determining whether a crime is inherently dangerous. K.S.A. 21-3436 addressed our concern, expressed in Lashley, 233 Kan. at 631, that overextension of the felony-murder doctrine had to be guarded against. Either the crime fits within one of the K.S.A. 21-3436 categories or it does not. Comparison of the crime to those listed in K.S.A. 21-3110(8) (definition of forcible felony), or to the catchall portion of the definition, is no longer required. In determining whether sale of cocaine is a forcible felony, we find consideration of the circumstances of the commission of the crime, in addition to the elements of the crime in the ab stract, appropriate because the legislature has determined a cocaine sale to be inherently dangerous. Here, we conclude the circumstances of the cocaine sale showed the threat or use of physical force or violence against -a person. Both the buyer and the seller carried and used concealed firearms. The result was Beebe’s death. Mitchell argues that two recent cases, State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996), and Gayden, 259 Kan. 69, in which we addressed the claims of self-defense in felony-murder cases, show that self-defense may be available in certain felony-murder situations. Alderson and Gayden are distinguishable because in both cases, self-defense was asserted as justification for committing the underlying felony. Here, Mitchell is not claiming any justification for committing the underlying felony of selling cocaine. The State contends that even if self-defense were available to Mitchell, the evidence was not sufficient to warrant a self-defense instruction. According to the State, the fact Beebe was shot in the back and back of the head does not show imminent danger to Mitchell at the time of the shooting. We need not address the State’s alternative argument because we hold the district court did not err in refusing to instruct on self-defense. The significant changes to the felony-murder statute after Wesson, with the legislature having expressly defined sale of cocaine as an inherently dangerous felony, justify reconsideration of our reasoning in Wesson. The abstract approach, first taken in Underwood, is not controlling in the determination of whether a felony is forcible because the legislature has now statutorily defined inherently dangerous felonies. The Separate Charges Instruction Mitchell claims that the trial court érred in failing to give PIK Crim. 3d 68.07, which states: “Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the Presiding Juror.” The “clearly erroneous” standard of review applies. Although PIK 3d Crim. 68.07 was not given, the jury received separate verdict forms, one for each count. The jury also was given a separate instruction for each count, stating the elements needed to establish each charge. The instruction for the first-degree murder charge referred to events resulting in Beebe’s death on December 15, 1994. The instruction on the possession of cocaine charge referred to Mitchell’s possession of cocaine on December 30, 1994. Although PIK Crim. 3d 68.07 should have been given, we find no prejudicial error. The two counts concerned different crimes occurring at different locations on different dates. Separate instructions and verdict forms were given for each. Under such circumstances, we conclude that the jury was not misled into believing that a finding of guilty on one count dictated a like finding on the other. See State v. Cameron & Bentley, 216 Kan. 644, 651, 533 P.2d 1255 (1975). The failure to give PIK Crim. 3d 68.07, although error, was not clearly erroneous. Affirmed.	[ -79, -20, -40, -98, 26, 96, 42, 24, 17, -25, 114, -45, -23, 79, 5, 123, 61, 61, 85, 105, -107, -93, 39, -55, -30, 51, 49, -60, -78, -56, 100, -2, 12, 100, -62, 85, 102, 74, 101, -42, -54, 5, -79, -32, -45, 2, -92, 122, 22, 15, 49, -99, -93, 43, 27, 66, -83, 56, 27, 109, 66, -72, 41, -105, -51, 20, -77, -92, -104, 13, -8, 30, -40, 53, 8, -24, 123, -106, -128, 116, 109, -119, -116, 100, 98, 36, 89, -51, -7, -104, 63, -1, -99, -90, -100, 72, 97, 13, -107, -97, 110, 62, 14, -16, 79, 20, 25, -4, 4, -50, -16, -111, -119, 61, 26, -38, -49, 37, 48, 101, -49, -22, 84, 117, 80, 27, -113, -108 ]
The opinion of the court was delivered by McFarland, C.J.: This is a 42 U.S.C. § 1983 (1994) action by certain inmates of the Hutchinson Correctional Facility against Charles Simmons, Secretary of the Kansas Department of Corrections, challenging the assessment of service fees against them pursuant to K.A.R. 44-5-115 (1996 Supp.). Defendant Secretary appeals from the district court’s judgment that: 1. the assessment of service fees for administering inmates’ trust accounts was violative of the inmates’ due process rights because the fees were paid to the crime victims compensation fund rather than used to defray costs of administration of the accounts; 2. K.A.R. 44-5-115(a) (1996 Supp.) exceeded the statutory authority granted in K.S.A. 1996 Supp. 75-52,139 when it ordered the fees to be paid to the crime victims compensation fund; 3. ordered the refunding of the service fees paid after the action was filed; and 4. granted a permanent injunction against the future collection of these service fees. The facts underlying this action are not disputed, and the questions presented are primarily questions of law over which we have unlimited review. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). The statute at issue is K.S.A. 1996 Supp. 75-52,139, enacted in 1994 (L. 1994, ch. 227, § 10), which provides: “The secretary of corrections is hereby authorized to adopt rules and regulations under which offenders in the secretary’s custody may be assessed fees for various services provided to offenders and for deductions of payment to the crime victims compensation fund.” Based upon this statute, the Secretary of Corrections promulgated K.A.R. 44-5-115 (1996 Supp.), effective January 3, 1995, which provides: “(a) Each inmate in the custody of the secretary of corrections shall be assessed a charge of one dollar each payroll period, not to exceed $12.00 per year, as a fee for the facility administering the inmate’s trust account. The facility shall be authorized to transfer the fee from each inmate’s account from the balance existing on the first of each month. In the event an inmate has insufficient funds on the first of the month to cover this fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the fee. All funds received by the facility pursuant to this provision shall be paid on a quarterly basis to the crime victims compensation fund. “(b) Every offender under the department’s parole supervision, conditional release supervision, post-release supervision, and interstate compact parole and probation supervision in Kansas shall be assessed a supervision service fee of a maximum of 25 dollars per month. This fee shall be paid by the offenders to the department’s designated collection agent(s). Payment of the fee shall be a condition of supervision. All fees shall be paid as directed by field service order and as instructed by the supervising parole officer. A portion of the supervision service fees collected shall be paid to the designated collection agent(s) according to the current service contract, if applicable. Twenty-five percent of the remaining amount collected shall be paid on an at least quarterly basis to the crime victims compensation fund. The remaining balance shall be paid to the department’s general fees fund for the department’s purchase or lease of enhanced parole supervision services or equipment such as electronic monitoring, drug screening, and surveillance services. The department shall establish criteria for the identification of indigent offenders who shall be exempt from this subsection of the regulation. Fees as authorized by subsection (d) of this regulation shall not be considered a portion of the monthly service fee. “(c) Each inmate in the custody of the secretary of corrections shall be assessed a fee of two dollars ($2.00) for each primary visit initiated by the inmate to an institutional sick call. A primary visit is the initial visit for a specific complaint or condition. Inmates shall not be charged for medical visits initiated by medical or mental health staff, institution intake screenings, yearly physical examinations, reception evaluations, evaluations requested by the Kansas Parole Board, referrals to a consultant physician, infirmary care, emergency treatment, mental health group sessions, facility requested mental health evaluations, or follow-up visits initiated by medical staff. No inmate shall be refused medical treatment for financial reasons. In the event an inmate has insufficient funds to cover the medical fee, the fee shall be transferred as soon as the inmate has sufficient funds in the account to cover the balance of the fee. “(d) An offender shall be assessed a fee for each urinalysis test administered to them for the purpose of determining use of illegal substances which has a positive result. The amount of the fee shall be adjusted from time to time to reflect the actual cost of administering such tests, including staff participation.” In this action, plaintiffs challenged subsection (a) and (c). The district court found that the medical fees for inmate-initiated medical visits, K.A.R. 44-5-115(c) (1996 Supp.), did not constitute cruel and unusual punishment in violation of plaintiffs’ constitutional rights. No appeal has been taken from this determination and it is not before us. The appeal herein concerns only subsection (a). It is clear from the district court’s memorandum decision that it had no problem with the basic concept of a $1 per month fee for administration of an inmate’s account. If the fees were going to the State General Fund to defray the cost of administering the accounts, the district court would have upheld the imposition of the fee. The district court held that the requirement in the regulation of paying the fees collected to the crime victims compensation fund rendered the fee collection violative of the plaintiffs’ due process rights and also exceeded the authority granted by K.S.A. 1996 Supp. 75-52,139. The plaintiffs’ complaints relative to trust account fees also focus on the use of the fees collected (payment to the crime victims compensation fund) rather than the right to collect fees for services provided or the reasonableness of the fees imposed. We believe it is appropriate to split consideration of the propriety of the charge for administration of the trust accounts from consideration of the propriety of the payment of the fees to the crime victims compensation fund. See K.S.A. 74-7301 et seq. for fund description and operation. The operation of the trust accounts was not a controverted fact and is summarized in the following affidavit admitted into evidence herein: “AFFIDAVIT “State of Kansas ) ) ss: County of Reno ) “I, Irlene Dick, Business Manager at the Hutchinson Correctional Facility (HCF), for the Kansas Department of Corrections (KDOC), being duly sworn according to law upon my oath, do hereby depose and state as follows: “Inmate participation in the inmate trust fund account is mandatory under almost all circumstances. In the event the inmate enters the facility without any funds, receives no money during his stay at the Hutchinson Correctional Facility, and has absolutely no income while he is here, there would be no service charge assessed. However, it goes without saying, that the inmate would be violating the facility’s rules concerning participation in programs and would be penalized in that way by having his release time set back. “The inmates have the option, pursuant to K.A.R. 44-5-103, to engage in transactions with any financial institution, upon written authorization of the principal administrator of the Hutchinson Correctional Facility. “The inmates who provide valid social security numbers receive interest at the passbook rate for whatever monies they have in their account. “The variety of services which are provided for the benefit of the inmate include, but are not limited to: 1. free monthly statement, plus unlimited extra free copies; 2. transfer of money to new location; 3. balance of account; 4. copies of checks; 5. posting of earned interest; 6. account information, i.e., whether checks have cleared; 7. write their checks, i.e., money to family, subscriptions, allowable items; 8. process individual deposits and issue receipts; 9. make their loan payments (made from IBF); 10. mail all payments; 11. make their TV lease payments; 12. make all donations to religious groups; 13. process all postage withdrawals; 14. pay all Jaycees membership dues; 15. handle special events, i.e., picture project, Christmas videos, holiday packages; 16. process canteen withdrawals; 17. process special requests, i.e., shoes, sweats, electronics; 18. special handling for handicrafts; 19. process clemency publicity advertisements; 20. maintain separate mandatory savings; and 21. post all incentive pay. “The administrative fee does not begin to pay the total cost of performing all of these services, but it does represent contribution by the inmates to the overall cost.” The district court likened the trust account fee to a monthly checking account fee charged by a bank. It is clear that considerably more than just the servicing of a checking account is involved. The inmates live in a cashless society where all income and expenditures are channeled through their trust accounts. The amount of funds in the average inmate’s account may be small, but the number of transactions to be handled and accounted for is large. There is no claim herein that a $1 per month fee to help defray the cost of administering an inmate’s trust account is an unreasonable charge, and the district court did not find that it was. “The Fourteenth Amendment of the United States Constitution prohibits a state from depriving ‘any person of life, liberty, or property, without due process of law.’’ “ ‘The concept of due process is flexible in that “not all situations calling for procedural safeguards call for the same kind of procedure.’ ” In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 370, 736 P.2d 923 (1987); see Darling v. Kansas Water Office, 245 Kan. 45, 50, 774 P.2d 941 (1989).” In re Marriage of Soden, 251 Kan. 225, 234-35, 834 P.2d 358, cert. denied 506 U.S. 1001 (1992). “When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought. This rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community.” Chiles v. State, 254 Kan. 888, Syl. ¶ 11, 869 P.2d 707, cert, denied 130 L. Ed. 2d 88 (1994). Again, it should be noted that plaintiffs do not contend that the State is prohibited by the Due Process Clause of the United States Constitution from charging $1 per month for administering each inmate’s trust account. The use of the fees collected is where the due process argument is aimed as it is likened to ordering restitution without an opportunity to be heard. K.S.A. 75-5201 charges the Department of Corrections, inter alia, to return inmates “to private life in the communities of the state with improved work habits, education, mental and physical health and attitudes necessary to become and remain useful and self-reliant citizens . . . [and] to rehabilitate, train, treat, educate and prepare persons convicted of felony in this state for entry or reentry into the social and economic system of the community . . . .” In testifying before the Senate Judiciary Committee hearing on March 18, 1994, on H.B. 2832, which was ultimately amended to include specific language of K.S.A. 1996 Supp. 75-52,139, defendant Secretary stated, in pertinent part: “Assessing fees to offenders is based on a belief that offenders should be accountable for their actions, and contributing to the costs of incarceration or supervision are important components of establishing that accountability.” Prison officials are given wide latitude in matters concerning the administration of correctional facilities. Such discretion should not be interfered with by the court in the absence of abuse or unless exercised unlawfully, arbitrarily, or capriciously. See Breier v. Raines, 221 Kan. 439, 559 P.2d 813 (1977); Levier v. State, 209 Kan. 442, 497 P.2d 265 (1972). When an inmate challenges a prison regulation as impinging on the inmate’s constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. LeVier v. Nelson, 21 Kan. App. 2d 172, 176, 897 P.2d 188 (1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d 459, 109 S. Ct. 1874 [1989], and Turner v. Safley, 482 U.S. 78, 96 L. Ed. 2d 64, 107 S. Ct. 2254 [1987]). It should be further noted that inmate grievance procedures are available to all inmates in each correctional facility. See K.A.R. 44-15-101a. These extensive procedures (K.A.R. 44-15-101 etseq.) are applicable to a broad range of matters directly affecting the inmate, including complaints by inmates regarding policies and conditions within the jurisdiction of the institution of the Department of Corrections. K.A.R. 44-15-101a(d)(l)(A). If the Secretary incorrectly assesses fees to an inmate trust account, plaintiffs have procedures available to them to rectify such errors. These procedures provide the due process flexibility noted above. See In re Marriage of So-den, 251 Kan. at 234-35. Courts in other jurisdictions have upheld a state’s right to require inmates to reimburse the state for their keep and maintenance. See Ervin v. Blackwell, 733 F.2d 1282 (8th Cir. 1984) (no claim of entitlement to full work release salary; maintenance cost reimbursement not arbitrary state action demanding due process protection); Scott v. Angelone, 771 F. Supp. 1064, 1067-68 (D. Nev. 1991), aff’d 980 F.2d 738 (9th Cir. 1992) (although inmate interests in funds in trust account are protected property interests, predeprivation hearing not required before deducting, medical charges); Hogan v. Arizona Board of Pardons & Paroles, 108 Ariz. 472, 475, 501 P.2d 944 (1972) (state may confiscate payroll checks of work furlough prisoners to help defray costs of operating program based on state statute expressly providing such áuthority); Burns v. State, 303 Ark. 64, 66-67, 793 S.W.2d 779 (1990) (law requiring forfeiture of prisoner’s estate for reimbursement of costs of prisoner’s care not due process violation); Treasury Dep’t v. Turner, 110 Mich. App. 228, 312 N.W.2d 418 (1981) (earned contributions to pension fund may be seized by prison officials under state statute imposing obligation of prisoner to pay for his or her keep and maintenance); Auditor General v. Olezniczak, 302 Mich. 336, 4 N.W.2d 679 (1942) (prisoner’s statutory obligation to pay for his or her maintenance, if there is a sufficient estate, is civil rather than criminal in nature; not unconstitutional as retroactive legislation in violation of due process law); Cumbey v. State, 699 P.2d 1094, 1096-98 (Okla.), cert. denied 474 U.S. 838 (1985) (prison reimbursement provisions held constitutional; monetary credits awarded to inmate accounts are not wages). We conclude the assessment of a $1 monthly service fee for administering.inmates’ trust accounts is not violative of the inmates’ due process rights. We turn now to the second prong of this issue — the propriety of paying the trustee account administration fees to the crime victims compensation fund. As will be recalled, the district court held that the portion of the regulation that required the payment of the fees to the crime victims compensation fund was: (1) violative of plaintiffs’ due process rights and (2) exceeded the statute’s grant of authority. H.B. 2832, which ultimately birthed K.S.A. 1996 Supp. 75-52,139, was originally introduced to cut down on frivolous lawsuits by inmates. The bill was amended many times and, in final form, bore little resemblance to its original form. The district court found that the regulation’s requirement that the fees be paid to the crime victims compensation fund rather than be used to defray the costs of administration of the accounts exceeded the authority granted by the statute, K.S.A. 1996 Supp. 75-52,139. There may be merit in this position, tracing the many amendments of the bill as it proceeded to enactment. The problem with this contention in the context of this litigation is that if the fees collected are being improperly sent to the crime victims compensation fund rather than being used to defray the costs of operation of the prison, the injured parties are the taxpayers of Kansas. The amount of the fee charged for services rendered is unaffected by the use to be made of the fees collected. We have previously held that the assessment of service charges for administrating the trust accounts is not violative of plaintiffs’ due process rights. Under these circumstances, can the plaintiff inmates base a § 1983 action on the use to which the funds are put or do they otherwise have standing to challenge the use made of the fees? We believe not. 42 U.S.C. § 1983 (1994) provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be hable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.” Possible improper expenditure of service fees properly assessed and collected is not violative of 42 U.S.C. § 1983. Further, even if this were not a § 1983 action, plaintiffs have no standing to bring an action seeking to enjoin a public official relative to the utilization of the fees herein. In Haines v. Rural High School Dist. No. 3, 171 Kan. 271, Syl. ¶¶ 1, 2, 232 P.2d 437 (1951), we held: “An individual is not a proper plaintiff and cannot maintain an action for injunctive relief against abuse of power by municipal officers unless he alleges and subsequently proves that his tax burdens will be increased. Such actions must be prosecuted by the state or one of its officers charged with the responsibility of scrutinizing the acts of public officers and board.” “In order for an individual to maintain an action of the character above mentioned he must plead and prove that he has sustained special damage different in kind from that of the public generally.” Generally, an injunction will not lie at the suit of a private person to protect die public interests. Ruthstrom v. Peterson, 72 Kan. 679, 83 Pac. 825 (1905); School District v. Shadduck, 25 Kan. 467, 478 (1881); see Boyer v. Southwestern Bell Telephone Company, 252 F. Supp. 1 (D. Kan. 1966). A plaintiff must have a special private interest distinct from that of the public at large in order to bring an actionable claim. Winters v. Kansas Hospital Service Ass’n, Inc., 1 Kan. App. 2d 64, 69, 562 P.2d 98 (1977); see Watson v. City of Topeka, 194 Kan. 585, 400 P.2d 689 (1965); Foster v. City of Topeka, 112 Kan. 253, 210 Pac. 341 (1922). As we have held above, plaintiffs here have no private interests distinct from that of the public at large. Interests to protect the public at large must be brought by the proper public official. We conclude the district court erred in determining: 1. The assessment of the $1 per month fee for administering the inmates’ trust accounts was violative of plaintiffs’ due process rights, based upon the utilization of the fees collected; 2. refunds of fees previously paid should be made; and 3. defendant Secretary should be permanently enjoined from collecting such fees in the future. In their brief, plaintiffs argue the fee for administering the trust accounts is violative of the Ex Post Facto Clause of the United States Constitution (U.S. Const., art. I, § 10). This issue is not properly before use in this case, but has been determined adversely to the plaintiffs’ position in Roark v. Graves, 262 Kan. 194, 936 P.2d 245 (1997). The judgment of the district court is reversed, and the case is remanded with directions to enter judgment in favor of the defendant in accordance with this opinion.	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The opinion of the court was delivered by: Six, J.: Plaintiff City of Dodge City (City) appeals the district court’s dismissal of the complaint charging defendant Norman Norton with driving under the influence of alcohol (DUI), in violation of K.S.A. 1994 Supp. 8-1567, for lack of probable cause to arrest. Our jurisdiction is under K.S.A. 22-3602(b)(l) (appeal by the prosecution as a matter of right from an order dismissing a complaint). The issue is whether there was sufficient evidence to establish probable cause to arrest Norton for DUI. Was the dismissal of the complaint error? We hold that it was. Norton appealed his municipal court conviction and sentence. After the appeal, the city prosecutor filed a notice of intent to proffer a certificate of analysis and laboratory report showing the results of a blood alcohol examination of Norton; the blood sample showed blood alcohol of .21 grams per 100 ml. of blood. Norton filed both an objection to the proffer and a motion to dismiss and/ or suppress the blood test results, based in part on lack of probable cause for the arrest. We summarize the testimony at the hearing on the motion to dismiss. Late on the evening of May 1, 1995, Officer Rose received a radio transmission from another officer (Addison) investigating a complaint concerning someone knocking on a door trying to get somebody up late at night at a trailer park. Rose was alerted to look for an older model General Motors pickup being driven by Norton and to check the driver for intoxication. People at the trailer park who talked to the investigating officer described Norton and the vehicle. They thought Norton was intoxicated. Addison was possibly going to pursue the incident at the trailer park as a disorderly conduct charge. Rose observed a pickup and driver matching the description and began to follow. The street was under construction. There were two lanes of traffic in the south half of the street, one for each direction. Rose observed the pickup miss two construction barrels by inches. A check showed the pickup was registered to Norton. As Rose followed, the pickup veered to the left and went over the center line for a block to a block and a half, then came back into its own lane, missing some construction barrels on the right. The driver was having trouble driving straight in his lane. There were two double yellow street lines through the construction zone. The pickup slowed down and turned into a vacant lot next to a bar. Rose was getting ready to stop the pickup when it slowed down at the intersection near the bar, made the turn, and pulled into a driveway. Rose pulled up behind it. Rose met the driver, asked his name, and told Norton that he had been following because another officer had reported that Norton had possibly been drinking, and Rose needed to check him out for that. Rose was 3 or 4 feet from Norton and could not smell any odor of alcohol. There was a slight breeze, and it was misty. Rose asked Norton for his I.D. Norton identified himself and told Rose that he had been trying to find a friend at the trailer park. When the friend did not come to the door, Norton left. Norton told Rose that he then decided to “come back to the bar for a couple more drinks.” Based on Norton’s statement, Rose thought Norton had had a couple of drinks before. Also, Norton’s eyes were “a little bit pink around the edges or blood shot.” Rose pointed out that Norton was driving all over the road, had missed construction barrels by inches, and had been driving on the other side of the yellow lines for a block and a half. Norton’s facial reaction registered surprise. Rose asked Norton if he would mind doing a few sobriety tests. Norton cooperated. Rose and Norton went to a flat, level area between the vehicles. Rose asked Norton if he had any trouble with his legs, feet, or hips and Norton said that he had had both legs operated on a few times in the past. Norton was asked to do the heel-to-toe test. He was wearing western style boots with low, flat heels. Rose asked Norton to take five or six steps, turn, and come back. Rose demonstrated for Norton. Norton was using his arms a little bit for balance. He did the five steps. He was missing his heel and toe, but was not doing “too bad,” except for the turn. He was slightly off balance on the turn and missed three touches on the way back. At that point, Rose believed that Norton was intoxicated and “under a condition not to be driving.” Norton did not do the required heel-to-toe touches. Rose did not know to what extent Norton’s surgery had created problems in the test. When Norton was having trouble walking after the sobriety test was completed, Rose decided to move closer. As Rose walked up to Norton to tell him that he was under the influence and would be arrested and given the breath test, Rose got close enough to smell a faint to moderate, but noticeable, odor of alcohol on Norton’s breath. The alcoholic odor further solidified Rose’s assessment of Norton’s condition, and it played into Rose’s decision to make the arrest. Norton was arrested and told he would be given a breath test. He was handcuffed and taken to the hospital. Rose did not give Norton a ticket for driving left of center or disorderly conduct, but told him that he would have to contact Officer Addison in the morning. Norton testified that the construction barrels took up 2 feet of the right edge of the new concrete, and there was no way to drive in that lane, and not go left of center, without going close to the barrels. According to Norton, there was little traffic, and he was taking it easy, driving a little bit further away from the barrels, a little further to the left than he normally drives. Norton did not remember seeing the two yellow lines in the center of the road that evening. Instead, he contended, the tape was wadded up over onto the south side of the road. The vacant lot where Norton took the sobriety test was muddy, and he was wearing regular cowboy boots, not low-heeled boots. Norton told Rose that his knees had been operated on several times and he was not very steady on them. His legs were crooked, so he had trouble walking any straight fine. He was waiting to have his knees replaced. Norton has had six major and four minor surgeries on his right knee and two minor surgeries on his left knee.- Norton also testified that the pickup he was driving belonged to his brother and was not registered in Norton’s name. Norton denied telling Rose that he was coming back to the bar or that he had been there earlier. Norton admitted having four or five beers that evening at the V.F.W. The District Court Decision In granting the motion to dismiss for lack of probable cause, the judge said: “[Ijt’s clear to me that there was a reasonable suspicion to stop the defendant. There was a radio transmission indicating that there had been some problems from another officer. Officer Rose was on watch for the defendant. When Officer Rose began to follow him, he saw the defendant almost hit some barrels, as reported.” The judge found no problem with the stop. However, he did not find probable cause to make the arrest because the surgeries Norton told Rose about could cause walking problems, and the only sobriety test administered was the walking type of test. Based on the physical condition of Norton’s knees, the judge did not believe the field sobriety test used by Rose was valid. The judge concluded that “the only evidence that the officer had at the time he made the arrest was the observation of the defendant’s driving, where he went left of center in a construction area where there was nobody coming, but his testimony was that he was doing so because of the barrels that were to his immediate right.” DISCUSSION In a DUI case, the answer to the probable cause to arrest question will depend on the officer’s factual basis for concluding that the defendant was intoxicated at the time of arrest. Thus, an appellate court’s review of the trial court’s determination of whether an officer had probable cause to make a warrantless , arrest in a DUI case is a mixed question of law and fact. See State v. Hopper, 260 Kan. 66, 68-69, 917 P.2d 872 (1996). The district court made a finding that probable cause to arrest was lacking. This amounts to a negative finding. “When the findings are negative, however, there must be proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, since the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it.” Lostutter v. Estate of Larkin, 235 Kan. 154, Syl. ¶ 1, 679 P.2d 181 (1984). In State v. Clark, 218 Kan. 726, 731, 544 P.2d 1372, cert. denied 426 U.S. 939 (1976), we said: “ ‘Probable cause . . . refers to that quantum of evidence which would lead a prudent man to believe that an offense has been committed. It is not necessary that the evidence giving rise to such probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove guilt is more probable than not. It is only necessary the evidence lead the officer to believe that guilt is more than a possibility, and it is well-established that the belief may be predicated in part upon hearsay information.’ [Citations omitted.]” Probable Cause for Warrantless Arrest K.S.A. 22-2401 sets forth the statutory requirements for making a warrantless arrest. Because Norton was charged with a first DUI offense, a class B misdemeanor, K.S.A. 22-2401(c)(2)(A) or (B) are applicable. Evidence of the crime (Norton’s blood alcohol level) would be irretrievably lost unless Norton was immediately arrested and tested. If Norton were allowed to continue driving in his condition, he may have caused serious injury to himself or others. K.S.A. 22-2401(d) is also applicable, in that the officer observed Norton’s driving before the arrest. See State v. Press, 9 Kan. App. 2d 589, 592, 685 P.2d 887, rev. denied 236 Kan. 877 (1984) (applying those provisions of K.S.A. 22-2401 to. a DUI warrantless arrest). Although Clark concerned application of K.S.A. 22-2401(c)(l) to a warrantless arrest for rape, this court’s discussion of probable cause in that case is useful. See 218 Kan. at 731-32. Probable cause to make a warrantless arrest under K.S.A. 22-2401 requires something more than a reasonable suspicion sufficient to justify a traffic stop under K.S.A. 22-2402. We discussed the distinction between probable cause to arrest and reasonable suspicion to stop in State v. Field, 252 Kan. 657, 659-60, 847 P.2d 1280 (1993). See City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997). State v. Larson, 12 Kan. App. 2d 198, 737 P.2d 880 (1987), considered a defendant’s argument that ihe results of a field sobriety test should be disregarded because of his physical impairment. Larson was stopped for going 72 mph on the interstate near Topeka. In talking to Larson, the officer noticed that his speech was slurred and he was slow in locating his driver’s license. The officer asked Larson to perform several field sobriety tests. There was a strong odor of alcoholic beverage on Larson’s breath. Larson was arrested for DUI. Larson testified that he told the officer at the time of the field sobriety tests he had a defect in his left eye and that he would not do well on any coordination or depth per ception test and would prefer another field sobriety test. In affirming Larson’s DUI conviction, the Court of Appeals stated: “[Djrivers who fail field sobriety tests due to impairments other than drunkenness will be protected by the results of the blood or breath testing performed following arrest.” 12 Kan. App. 2d at 204. The Court of Appeals’ reasoning applies here. The better practice would have been for Rose to have required more than one field sobriety test. However, Rose believed Norton was intoxicated after administering the heel-to-toe test. That belief was further solidified when Rose got close enough to smell Norton’s breath. Norton was getting out of his pickup to go into the bar when Rose encountered him. Rose could not independently verify the accuracy of what Norton told him about the condition of his knees or determine how that condition might have affected Norton’s field sobriety test performance. Norton argues that Rose did not smell alcohol until he had placed Norton under arrest. Rose’s testimony showed that, he smelled alcohol on Norton’s breath when he approached Norton to place him under arrest after Norton performed the heel-to-toe test. Even if Rose had already decided that Norton was intoxicated before he smelled alcohol on Norton’s breath, if his smelling of the alcohol occurred before the instant of arrest, it should be considered as part of the basis for the probable cause determination. At the time of the arrest, Rose had the following undisputed information: (1) Norton had created a disturbance at a trailer park and was intoxicated and driving a pickup; (2) Norton’s pickup narrowly missed construction barrels and weaved in his own lane; (3) Norton parked next to a bar, got out of his pickup, and told Rose he had been at the trailer park to arouse a friend and was going into the bar for a few drinks; (4) Norton’s eyes were pink or bloodshot; (5) Norton told Rose he had problems with his legs and failed the heel-to-toe test; and (6) Rose smelled alcohol on Norton’s breath as he approached him to place him under arrest. This information is sufficient to establish probable cause to arrest. We sustain the City’s appeal and remand the case for further proceedings.	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The opinion of the court was delivered by Davis, J.: Keno Claiborne appeals his convictions and sentence for felony murder, aggravated robbeiy, aggravated battery, and aggravated assault. He claims that he should have been tried as a juvenile offender. He also contends that the court abused its discretion by denying him the opportunity to call an alibi witness. Finally, he contends that the evidence is insufficient to establish aggravated robbery. We affirm. At the time the defendant was charged with felony murder, aggravated robbery, aggravated battery, and aggravated assault, he was 16 years old. Upon motion by the State and after a full hearing, the defendant was certified to stand trial as an adult. Early one Sunday morning in mid-August, the defendant and another assailant, Michael Yates, attacked Michael Wheat, Christopher Humphrey, and Sheena Hoyer in order to steal Wheat’s car. Wheat was shot in the leg by Yates as he attempted to exit the driver’s seat. On the other side of the car, the defendant pointed a gun at Hoyer and ordered her out of the way. He then ordered Humphrey out of the car. A struggle ensued during which Humphrey received a fatal gunshot wound to the head. The defendant escaped on foot, and Yates drove the car away. The victims were unable to identify the assailants because they had covered their faces. Yates testified that he and the defendant were traveling to visit their friend, LaTonya Ward, when they saw Wheat’s car and decided to take it. Ward lived next door to Shannon Hoyer, the older sister of victim Sheena Hoyer. The car was parked in front of Shannon Hoyer’s house at the time. Yates testified that it was his idea to steal the car. He stated that they entered Ward’s house, that they talked with her, that he removed his jewelry, and that both he and the defendant covered their faces. They hid in the bushes across the street from the car. Yates testified that after 20-30 minutes, Wheat, Humphrey, Sheena Hoyer, and her twin sister, Sara, came out of Shannon Hoyer’s house and walked to the car. After Sara returned to the house, Yates and the defendant jumped out of the bushes and confronted the others. Yates explained that he shot Wheat in the leg, pulled him out of the car, and drove the car away. He heard another gunshot behind him. He met the defendant at a prearranged place, drove the car to a field, and together they removed the wheels. He testified that the defendant shot Humphrey. Yates also stated that he was testifying against the defendant pursuant to a deal he made with the district attorney’s office to get the lesser charge of aggravated battery. Ward testified that prior to Yates leaving her home, he told her “they were about to go jack some nigger for their car.” She went to bed but got up when she heard voices outside. She assumed nothing was wrong because she saw several people were talking together. After she returned to bed, she heard gunshots. When she looked out the second time, she saw Sheena with Humphrey, who was lying on the ground. She also saw the car drive off, and she saw someone run between the buildings. The person running away had a white t-shirt wrapped around his head. She exited and attempted to assist Wheat with his wounded leg. Wheat testified at the defendant’s trial and confirmed the events of the evening. In addition, Sheena and Sara testified to the same events. No one was able to provide a description of the assailants because of their covered faces other than that they were both black males. The following day, the defendant and Yates arrived at Ward’s home and told her to keep quiet about the events of the night before. Nevertheless, she called Crime Stoppers and anonymously reported what she knew. Eventually, she gave a statement to the police. Two of the police detectives who investigated the homicide testified at trial. Detective Thomas Young spoke of his interview with Yates 2 days following the murder. The interview was conducted at the Topeka police station and was videotaped. During the interview, Yates denied all charges. Despite Yates’ contentions, Detective Young removed Yates from the room and proceeded to prepare an arrest report. Young testified that Yates then told him he wanted to talk. Yates confessed to the carjacking, claimed that he shot .Wheat by accident, and claimed that he only drove the car around the comer. Since the video room was being used, Young was not able to videotape the confession. Yates insisted he did not kill Humphrey, and he told Detective Young that the defendant was responsible. Sergeant Detective Randy Mills testified that the police conducted two interviews with the defendant. In the first interview, the defendant denied his involvement and suggested gang members of the Four Comer Hustlers were responsible. He stated that at the time of murder he was talking with relatives in front of the home of his cousin, Calinda Johnson-Bumett. Following this interview, Mills assigned various officers to verify the defendant’s alibi. During the second interview, the police confronted the defendant with the fact that they could not confirm his alibi. The defendant continued to maintain he had not commited the crime. At the close of the interview, Mills completed the paperwork for the defendant’s arrest. At trial, the State called Calinda Johnson-Bumett, her husband, Casey Burnett, and the defendant’s aunt, Belinda Wiseman. The defendant gave the names of each of these people to the police when he explained where he was on the morning of the murder. Each testified that they did not remember seeing the defendant that morning. Finally, the State called Jared Self. This young man testified that 2 days before the murder, he was at a gathering with both the defendant and the victim. According to Self, the defendant proclaimed that he wanted the “rims” on Wheat’s car. Humphrey responded: “Not while I’m alive.” The defendant responded: “Shit happens.” Self gave this information to the police a week after Humphrey was killed. The defendant did not testify at trial. He called one witness, Victoria Johnson, another cousin, to testify to his presence on the night of the murder. The State objected on the grounds that it had not received notice of the alibi witness, and the district court dismissed the witness. Certification As An Adult Recently, in State v. Tran, 252 Kan. 494, 847 P.2d 680 (1993), we said: “Any time a court in Kansas is asked to determine whether the prosecution of a juvenile as an adult is warranted it must consider the statutory factors that appear in K.S.A. 1992 Supp. 38-1636(e). Additionally, K.S.A. 1992 Supp. 38-1636(f)(2) requires the court to find, among other things, that there ‘is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged.’ ” 252 Kan. at 508. The standard we apply on appeal is also set forth in Tran. “The standard for evaluating whether the decision to certify a juvenile as an adult was proper is whether the decision is supported by substantial evidence.” 252 Kan. at 508. Finally, the insufficiency of the evidence pertaining to one or more factors listed in K.S.A. 38-1636(e) is not determinative. State v. McIntyre, 259 Kan. 488, Syl. ¶ 5, 912 P.2d 156 (1996). The defendant contends that the district court based its decision solely upon evidence that the defendant’s prognosis within the juvenile system was poor, to the exclusion of other statutory factors. The record does not support this contention. The court concluded: “In reviewing the eight factors for consideration, and the Court notes specifically the statute reflects that the insufficiency of evidence pertaining to any one or more of the factors listed in this subsection should not, in and of itself, be determinative of the issue. The Court has those eight factors for consideration, and, certainly, in looking at the eight factors before the Court here today, the Court must look towards the history and the chronicity of the actions of this respondent. The Court must look towards the severity of the allegations before the Court, and recognize and understand that they are simply allegations. The Court must look towards the prior adjudications, which are misdemeanor adjudications, although they may have, in some instances, been filed as a higher level of complaint. The Court looks toward the adjudicated factor, not what the original filing was; but, probably the most controlling issue for the Court’s consideration as far as this case is concerned is subsection (7), which deals with the availability of programs within the system to meet the needs of the respondent and that are likely to rehabilitate the respondent prior to the expiration of the Court’s jurisdiction. As counsel are well aware, this Court’s jurisdiction ends at the age of twenty-one without regard to what the status of the Respondent may or may not be at that point in time. Once they reach the age of twenty-one, they are discharged from the Court’s jurisdiction, and the Court has no ability to extend or modify that factor. “The testimony of Dr. Logan is, his expert recommendation or testimony was, to waive the young man into the adult system, to let him stand or fail, if you will, as to his innocence, which he proclaims in the adult system through a trial by jury of his peers, to determine whether or not he is culpable for the acts alleged. Doctor Herrman, who is the program director for the Youth Center at Topeka, indicated that, despite the programming that is available, and despite the fact that there is now programming available that was not previously available to this young man, that his prognosis was poor as to the success of rehabilitation of this young person within the confines of the juvenile system. Miss Teller testified that, in her experience as a Court Services officer, there are no other programs within the juvenile system that are likely to afford rehabilitation; that there was consideration of Job Corps, there was consideration of St. John’s Military School, there was consideration of other group-home facilities, none of which were deemed appropriate or willing to accept the respondent due to the history and chronicity of his problems.” “The Court finds, in this case, that despite my belief in the system and despite my desire to afford every opportunity to young people to benefit from the juvenile system, it is my finding that, in this instance, the Court should and will waive his young man into the adult system to face the charges that the district attorney wishes to levy.” We conclude that there is substantial evidence supporting the trial court’s certification. Alibi Witness The defendant called Victoria Johnson to testily that at the time of the incident, she saw him at a party given by Calinda JohnsonBumett. There is no dispute that the evidence was to be an alibi for the defendant. The State objected on the grounds that defense counsel had failed to file a notice of an alibi witness pursuant to K.S.A. 22-3218, which provides: “(1) In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention. “(2) On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto applicable to allowing the prosecuting attorney to endorse names of additional witnesses on an information. The notice shall be served on the prosecuting attorney at least seven days before the commencement of the trial, and a copy thereof, with proof of such service, filed with the clerk of the court. For good cause shown the court may permit notice at a later date. “Within seven days after receipt of the names of defendant’s proposed alibi witnesses, or within such other time as is ordered by the court, the prosecuting attorney shall file and serve upon the defendant or his counsel the names of the witnesses known to the prosecuting attorney which the state proposes to offer in rebuttal to discredit the defendant’s alibi at the trial of the case. Both the defendant and the prosecuting attorney shall be under a continuing duty to disclose promptly the names of additional witnesses which come to the attention of either party subsequent to filing their respective witness lists as provided by this section so that reciprocal discovery rights are afforded both parties. “(3) In the event the time and place of the crime are not specifically stated in the complaint, indictment or information, on application of defendant that the time and place be definitely stated in order to enable him to offer evidence in support of a contention that he was not present, and upon due notice thereof, the court shall direct the prosecuting attorney either to amend the complaint or information by stating the time and place of the crime, or to file a bill of particulars to the indictment or information stating the time and place of the crime; and thereafter defendant shall give the notice above provided if he proposes to offer evidence to the effect that he was at some other place at the time of the crime charged. “(4) Unless the defendant gives the notice as above provided he shall not be permitted to offer evidence to the effect that he was at some other place at the time of the crime charged. In the event the time or place of the crime has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the prosecuting attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the crime other than alleged, but within the period of the statute of limitations applicable to the crime and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the crime.” The defense counsel agreed that a formal notice of alibi was never filed with the court. However, he argued that the State did not suffer any surprise by his calling Victoria Johnson to testify. Counsel stated that she was one of several people the defendant told the police he had talked with on the night of the crime and, thus, the State was aware of her. In addition, counsel noted that the State had called each of those people to the stand except Victoria Johnson. In responding to the State’s objection, the trial court determined that what the State may or may not have known would not circum vent the notice requirements of the alibi statute. The trial court stated: “THE COURT: The statute doesn’t say you don’t have to give notice if they know all the witnesses that you are going to call, just bring it on them. That doesn’t cut it. “All right. I’m going to sustain the objection. I think that to call a witness that you’ve not — or when you’ve not stated the alibi defense, to call a witness that you’re going to try to put Keno in some other place at the time that all of the evidence points to the crime occurring is contrary to the alibi statute.” The exclusion of alibi testimony because of noncompliance with the notice requirements of K.S.A. 22-3218 is within the trial court’s discretion. State v. Roberts, 226 Kan. 740, 602 P.2d 1355 (1979); State v. Kirk, 208 Kan. 645, 493 P.2d 233 (1972). The defendant contends that the exclusion deprived him of his right to present a defense and therefore denied him a fair trial. However, we have further held the notice of alibi statute does not deprive the accused of the defense of alibi but simply makes notice of the defense a prerequisite. State v. Rider, 194 Kan. 398, 401, 399 P.2d 564 (1965). As pointed out in Williams v. Florida, 399 U.S. 78, 81, 26 L. Ed. 2d 446, 90 S. Ct. 1893 (1970): “Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.” See Roberts, 226 Kan. at 743. The defendant relies upon those factors a trial court must consider when deciding whether to allow a party to call a witness that was not endorsed to testify at trial. Those factors were set forth in State v. Bright, 229 Kan. 185, 623 P.2d 917 (1981), and provide solid guidelines for the trial court in determining whether to allow a party in a criminal prosecution to call a witness or witnesses not disclosed but required to be disclosed prior to trial. The trial court should: “(1) [ijnquire why the witness or witnesses were not disclosed; (2) determine when the witness first became known to defense counsel, and whether the nondisclosure was willful or inadvertent; (3) determine whether the proposed testimony is trivial or substantial, whether it goes to an important or minor issue; (4) determine the extent of prejudice to the State, and the importance of the witness to the defense; (5) determine any other relevant facts; (6) grant the State a recess if prejudice can be avoided or reduced by such action; and (7) avoid imposing the severe sanction of prohibiting the calling of the witness if at all possible. This should be viewed as a last resort.” Bright, 229 Kan. at 194. The defendant, relying upon State v. Douglas, 234 Kan. 605, 675 P.2d 358 (1984), contends that the failure of the trial court to consider the above factors amounts to an abuse of discretion. In Douglas, the defendant gave the required alibi notice that he intended to rely upon alibi some 50 days prior to trial and listed three witnesses. Long before the State rested its case, the defendant was aware that Melvin Anderson, not disclosed to the State, was a potential alibi witness. Three days into trial, after the State rested, the defendant sought to endorse Melvin Anderson. We affirmed the trial court’s exclusion of the alibi witness but said: “The alibi statute requires a trial judge deciding whether to allow late endorsement of an alibi witness to exercise the same discretion he must exercise when deciding whether to allow late endorsement of a prosecution witness on the information. This is the same discretion that the trial court must exercise when the defense has agreed but has failed to disclose defense witnesses prior to trial and then seeks to endorse additional witnesses. As a result, the rationale of [State v. Bright, 229 Kan. 185, 623 P.2d 917 (1981),] applies when the endorsement of additional alibi witnesses is sought.” 234 Kan. at 607-08. It must be noted that Douglas involved the endorsement of additional alibi witnesses after adequate notice under K.S.A. 22-3218 had been given. In this case, no notice had been given by the defendant even though the defendant knew or should have known long before the trial about Victoria Johnson. Given our standard of review and the clear directions contained in K.S.A. 22-3218, we conclude that the trial court did not abuse its discretion in excluding the defendant’s alibi witness. Sufficiency of Evidence The defendant alleges that there is no evidence to support a conviction of aggravated robbery predicated on a taking by threat of bodily harm. K.S.A. 21-3427 defines this crime: “Aggravated robbery is a robbery, as defined in K.S.A. 21-3426 and amend ments thereto, committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3426 provides: “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” (Emphasis added.) “Threat” has been defined by the Kansas Legislature. K.S.A. 21-3110(24) provides: “ ‘Threat’ means a communicated intent to inflict physical or other harm on any person or on property.” “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996). In addition, “[t]he appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained.” State v. Pratt, 255 Kan. 767, 768, 876 P.2d 1390 (1994). The facts set forth above establish that the defendant wrapped a white t-shirt over his face, hid in the bushes with a weapon, and jumped out and, with Yates, took Wheat’s automobile. Thereafter, both met and removed the rims that had motivated the robbery in the first place. While the driver of the vehicle was shot in the leg, the prosecution chose to proceed upon the theory that the defendant, with Yates, obtained the vehicle by threat of force. We are convinced based upon the evidence of record that a rational fact-finder could have concluded beyond a reasonable doubt that the taking of the vehicle was effected through a threat, even though there was also evidence that it was effected by shooting Wheat in the leg. Affirmed.	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The opinion of the court was delivered by Porter, J.: This is an ordinary suit to foreclose a mortgage on real estate. The plaintiff is the wife of the defendant, but when the suit was filed they had separated. The husband answered, admitting the execution of the note and mortgage and alleging that they were given without any consideration. As a second defense the answer alleged that the parties were husband and wife and that the note and mortgage were given for and in contemplation of securing a divorce without any defense thereto, and are therefore void as against public policy. The cause was tried to a jury and a verdict returned in favor of the defendant. A motion for a new trial was overruled and plaintiff appeals. Since the trial the court house burned and the stenographer’s notes were lost. Plaintiif has been unable to procure a transcript of the evidence. There are no errors assigned in plaintiff’s abstract; but in the brief complaint is made that the trial court committed an abuse of discretion which prevented plaintiff having a fair trial. The abstract contains this statement: “Just prior to the argument to the jury the court called upon the clerk of the district court to preside and keep time at the argumerits, saying that he had himself some other matters to attend to. Whereupon, the appellant objected to the court’s leaving the room and objected to anyone else presiding except the judge himself, saying that considerable irrelevant matter had leaked in during the trial of the case and that he feared that the argument would not be confined to the testimony. The court jokingly replied that he did not think that if he remained he would be able to keep attorneys for either side within the testimony, and left the court room and remained absent during the arguments.” It is further stated in the abstract that during the. argument the jury were told by counsel for the defendant that the plaintiff was of bad moral character, and that this statement was made notwithstanding that depositions offered by the defendant for the sole purpose of attacking the personal and moral character of the plaintiff had been rejected by the court as incompetent and irrelevant. Some of the facts contained in plaintiff’s abstract as to what occurred are denied by the defendant in a counter-abstract, in which it is asserted that the judge remained in the court room during the argument to the jury of courisel for plaintiff. We think the record discloses prejudicial error. A party has a right to complain of the action of a judge in calling the clerk to preside at a trial and leaving the court room. This ought to be the rule in any lawsuit; and it certainly applies to a case that has been warmly contested and where prejudice is likely to result from statements outside the record made during arguments. Apparently enough had already transpired to satisfy the judge that he would have difficulty in confining, the árguments of counsel to the real issues in the case. The plaintiff objected to the action of the judge in turning the business of the court over to the clerk, and it ought not to require very much of a showing of prejudice to authorize a new trial. There are several things in conection with this case that satisfy us that plaintiff was denied a fair trial. In a criminal case (The State v. Beuerman, 59 Kan. 586, 53 Pac. 874) it was said in the opinion: “The absence of the judge during the progress of a trial can not be sanctioned. The argument of a cause is an important part of the trial, and it is essential that it should be conducted in the presence and hearing of the judge who must ultimately approve the proceedings and render judgment. The hearing and conduct of the argument is almost, if not quite, as important as the hearing and reception of testimony; and the judge should be present to see that counsel in their arguments do not go beyond the bounds of legitimate discussion and to determine any objections that may be raised. In fact, there can be no court without a judge, and he can not even temporarily relinquish control of the court or the conduct of the trial. It is necessary that he should hear all that transpires in the trial in order that he may intelligently review the proceedings upon the motion for a new trial.” (p. 591.) The judgment is reversed and a new trial ordered.	[ -16, -24, -79, -33, -86, 32, 42, -40, 112, -127, -93, -45, -19, -61, 4, 109, 50, 105, 84, 107, -43, -78, 47, 99, -14, -13, -16, -43, -79, -49, -27, -41, 76, 114, -62, -41, 102, -54, -57, 84, -114, -105, -119, 100, -40, 66, 52, 59, 80, 13, 21, -2, -29, 46, 57, 78, -56, 44, 74, 117, -16, -71, -116, 15, 93, 3, -77, 39, -98, -58, 88, 12, -112, 49, 1, -24, 115, -106, -122, 116, 107, -70, 9, 38, 98, 2, 77, 111, -24, -119, 7, 116, 63, -90, -111, 72, 11, 8, -74, -99, 109, 80, -90, -34, -18, 21, 29, 108, 11, -114, -42, -77, -113, 124, -100, -118, -26, -93, 5, 112, -51, -96, 92, -57, 57, -71, -50, -76 ]
Opinion by Simpson, C.: Action in ejectment to recover a quarter-section of land in Cowley county. Both sides claim title through one N. L. F. Monroe, who, in the month of December, 1879, made a conveyance thereof to Margie Young. It is claimed that the sole consideration for this conveyance was paid by William Young, the husband of Margie Young, and that he caused the deed to be made to her to defraud his creditors; that the said William Young, at the time this conveyance was made, was indebted to several persons, and among them to the firm of Morehead, Young & Co., who recovered a judgment against William Young in the district court of Shawnee county, on.the 13th dayof May, 1875, and on the 14th day of February, 1880, a transcript of which judgment .was duly filed in the office of and with the clerk of the district court of Cowley county, and became a lien on all the lands and real estate of William Young in that county, and particularly the land in controversy; that an execution was issued on said judgment, and said land sold to Geo. W. Crane, who received a sheriff’s deed therefor on the 11th day of June, 1880; that Crane sold and conveyed said land to one H. L. Barker on the 21st day of June, 1880, who took possession of the same; that Barker sold said land, and conveyed it to Marion Culver on the 2d day of December, 1881, and since that time two-thirds of said land has been conveyed to this plaintiff in error, John Culver, and Adilene Tully and Marion Culver are the owners of the other third; that these parties have been in the actual, open and notorious possession of this land, claiming to be the owners thereof, ever since the 21st day of June, 1880; that more than six years have elapsed since the recording of said sheriff’s deed to said land. John Culver filed a supplemental answer, alleging that since this action was commenced, he had become the sole owner of the land in controversy. Margie Young conveyed this land to Thomas W. Cochrane; Cochrane conveyed it to Wm. P. Wilson; Wilson conveyed it by quitclaim to I. E. H. Moeser. Margie Young conveyed to Cochrane 19th February, 1880; Cochrane conveyed to Wilson 7th May, 1881; Wilson conveyed to Moeser 20th November, 1884. At the September term, 1888, a jury was waived and a trial had by the court, and a general finding for the defendant in error was made, and judgment entered in her favor. A motion for a, new trial was overruled, and the case is here for review. The sole contention of counsel for the plaintiff in error here is, that on the evidence produced at the trial the plaintiff in error was clearly entitled to a judgment in his favor, and that there is no evidence to sustain the judgment rendered. Counsel overlooks the fact that there is not a particle of evidence tending to connect Margie Young with the judgment of More-head, Young & Co., or with an attempt to defraud the creditors of her husband, or with any knowledge of the gambling transaction in which her husband participated, until this action is commenced by an apparently innocent purchaser to recover the possession of the land. And in the meantime Margie Young has conveyed to Cochrane, Cochrane has conveyed to Wilson, and Wilson to Mrs. Moeser, the defendant in error, with no hint in the evidence that either Cochrane, Wilson or the defendant in error had notice or knowledge of the gambling transaction, or of the attempt on the part of Young to defraud his creditors. And all the time there was nothing in the record in any manner connecting Margie Young with the judgment and sale of this land to satisfy the claim of More-head, Young & Co. The first subdivision of § 16 of the code has no application to the facts in this case so far as the defendant in error is concerned. She is not the execution debtor or his heir, nor does she claim under him, but she claims by virtue of the title held by Margie Young; whereas, the judgment on which the land was sold was not rendered against Margie Young, but against William B. Young, her husband. If this conveyance was made to Margie Young, the consideration having been paid by her husband, and the title was put in her name to defraud his creditors, and Mrs. Moeser knew these facts at the time she bought the land, then there would be force in the claim; but there is no evidence showing notice to or knowledge by either Cochrane, Wilson or the defendant in error, of these facts. It is partially shown that the sole consideration for the conveyance by Monroe to Margie Young was a gambling debt due from Monroe to Wm. Young; but this is not shown to have been known to Cochrane, who bought from Mrs. Young, or to Wilson, who bought from Cochrane, or to the defendant in error, who bought from Wilson. There is no legal view that can be taken of the facts disclosed by this record that would justify a reversal of the cause. It is recommended that the judgment be affirmed. By the Court: It is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Horton, C. J.: The Williams & White Land and Loan Company brought its action against Mrs. A. M. Betz to recover a commission of $195, alleged to be due it from her for services rendered in the sale of certain real estate belonging to her. At the September term, 1888, the trial was had before the court with a jury, and resulted in a verdict for Mrs. Betz. The land and loan company filed its motion for a new trial, which was granted. Mrs. Betz excepted, and brings the case here. The motion for a new trial alleged misconduct of the jury; that the verdict and judgment were not sustained by sufficient evidence, were contrary to the facts, and also contrary to the law. The court, in sustaining the motion for a new trial, did not announce any reason for so doing. It is therefore impossible to say, upon the record presented, that “the trial court passed upon some pure, simple and unmixed question of law.” This court has decided time and again that “the granting of a new trial is largely in the discretion of the trial court; and where a new trial is given, and the record does not show upon what grounds the court granted such new trial, but the record does show errors upon which the trial court might have granted a new trial, the order granting such trial will not be disturbed.” (Barney v. Dudley, 40 Kas. 247; Howell v. Pugh, 25 id. 96; City of Sedan v. Church, 9 id. 190.) As a new trial is to be had, the question of law discussed in the briefs will be referred to. The contention is, that as the contract which Mrs. Betz entered into with T. C. Brewer and F. D. Tripp, the purchasers or parties agreeing to purchase, was not a contract of sale, but simply a contract to sell, therefore the land and loan company did not earn its commission. Stewart v. Fowler, 37 Kas. 677, is claimed to be decisive against the right to recover any commission. In that case it was said: “Where a contract for a commission for the sale of land provides that the land must be sold to a person ready, willing and able to buy, it is not enough that there has been a contract to sell made. There must have been a sale before the commission is earned.” But this was further qualified by the facts disclosed in the case, that the purchaser was unwilling to buy according to the terms of the contract, and also his ability to pay the purchase-price was not affirmatively shown. It was said in that case, that the burden of proving the purchaser’s ability to pay was upon the plaintiff to establish, and therefore that the instructions prayed for in that case, to the effect that the purchaser was ready, willing and able to perform the conditions of the sale before the commission was earned, should have been given. The facts stated in the opinion must be considered in connection with the law declared in the syllabus. In this case, the trial court charged the jury, among other things, as follows: “2. It is admitted that the defendant had the tract of land in question for sale, and employed the plaintiff as agent to assist in effecting such sale; and that it was agreed between the parties that the rate of commission, in case a commission was earned, should be 5 per cent, on the first thousand dollars of the purchase-money, and 2-¿- per cent, on the balance. It is further admitted that the language used by the parties in making their agreement was, that if plaintiff found a purchaser, he was to sell the land for $85 per acre, making $6,800, and'was to receive therefor the above-named commission. “3. It is further admitted that the plaintiff found and offered, as purchasers of the land, one Tripp and one Brewer, and that the defendant and her husband on the one part, and said Tripp and Brewer on the other part, entered into a written agreement, which has been read in evidence, and whereby said defendant and her husband agreed to sell said land for the said sum of $6,800 to said second parties, and said second parties agreed to purchase said land and pay therefor the said sum, divided in payments as specified in the contract; and it was further agreed, that in case the second parties fail to make any payment as specified, the defendant could declare said contract determined and forfeited, and should have the right to retain any purchase-money already paid. “4. And it is further admitted that the second parties, Tripp and Brewer, failed to make the second payment, in amount $900, as required by the terms of the contract, and thereafter the defendant declared and treated said contract as determined, and all the rights of the second parties thereunder as forfeited. “5. The jury are instructed that the contract above described is not in its terms a contract of sale, or a contract by which a sale was effected, but is simply a contract to sell upon certain named conditions. By its terms Tripp and Brewer bound themselves to buy the laud and pay the purchase-money, and the defendant had the right in law to hold them to the terms of the contract. Upon the default of Tripp and Brewer, she had the option to sue for the enforcement of the contract, or declare it at an end so far as they were concerned. “6. But as to the rights of the plaintiff in this transaction, the court instructs the jury that if Tripp and Brewer, who were put in communication with the defendant by the plaintiff, or either of them, at the time the contract was made, were not only willing to purchase the land in question, but solvent and able to pay for said land according to the terms fixed by the defendant, in that case the plaintiff, by what he did, earned the commission agreed upon, and has the right to recover such commission, notwithstanding the fact that said Tripp and Brewer failed to make the second payment as agreed. “7. The jury are instructed, that Tripp and Brewer having failed in punctuality in making payment, it is not to be presumed that they were solvent and able to pay, but the burden of showing this fact by the greater weight of the evidence is upon the plaintiff.” These instructions properly presented the law to the jury. There was evidence offered upon the trial tending to show that Tripp and Brewer, or at least Brewer, was worth $9,700 above all of his indebtedness and exemptions, and therefore was able to buy. It is true that when pay-day came it does not appear that he was ready and willing to make his payments according to the written contract of sale, but Mrs. Betz could have enforced the payments specified in the written con-' tract, and as the contract gave her the sole option to forfeit it in case of failure of payment according to its terms, she need not have declared a forfeiture unless she preferred so to do. Tripp and Brewer could not, by the terms of the contract, declare any forfeiture. They had no option in the matter. Therefore, if the evidence concerning the ability of Brewer to buy is to be believed, the land and loan company earned its commission and is entitled to recover. (Keys v. Johnson, 68 Pa. St. 42; Stewart v. Fowler, supra; Glentworth v. Luther, 21 Barb. 14; Buckingham v. Harris, Colo., 15 Pac. Rep. 819; Goss v. Brown, Minn., 18 N. W. Rep. 290; Willes v. Smith, Wis., 45 id. 666.) We gather from the briefs that the trial court set the verdict aside because the jury did not follow its instructions, or because, without any good reason therefor, they arbitrarily disregarded the evidence concerning the ability of Brewer to buy. The order of the district court granting a new trial will be affirmed. All the Justices concurring.	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Opinion by Green, C.: This was an action for an injunction, in the district court of Stanton county, to restrain the officers of Johnson City from an alleged misappropriation of the funds of the city. In the absence of the district judge from the county, the probate judge granted a temporary injunction upon an application duly verified. A motion was afterward made before the district judge to dissolve this temporary order made by the probate judge, which was sustained, upon the ground that the petition upon which the injunction was asked was not verified. It is admitted by the record that the petition was not sworn to, but that the application which was presented to the probate judge was properly verified. The only question, then, presented for our determination is, whether a verification of the _ application alone is sufficient. We think it is. The application for an injunction in this case stated that the relator had filed a petition in the district court for an injunction; that a copy of the petition was attached to the application and made a part of the same. The verification was by the county attorney and another person, and each swore that he had read the application and the exhibit thereto attached, and that they were true. We are of the opinion that this is a substantial compliance with §§ 238 and 239 of the code of civil procedure. The verification really covered the allegations of the petition, as well as the application. We think it was manifest error for the court to dissolve the injunction, upon the sole ground that the petition was not sworn to, when there was an application properly verified presented to the judge granting the remedy, which satisfactorily established the plaintiff’s equities. We recommend that the order of the district judge dissolving the preliminary injunction be set aside; that the restraining order heretofore granted by the probate judge be continued until otherwise disposed of; and that the cause be remanded for further proceedings. By the Court: It is so ordered. All the Justices concurring.	[ -79, 108, -20, -116, 74, -32, 9, -84, -45, 1, -25, 19, -19, -22, 12, 41, -6, 107, 117, 121, -13, -78, 127, 72, -14, -13, -54, -35, -77, 111, -28, -33, 92, -80, -22, -43, 70, -128, -57, 92, -62, 1, -103, 109, 81, -64, 52, 123, 82, 15, 117, -81, -29, 42, 25, 67, -23, 44, -37, -83, -62, -32, -99, 21, -51, 7, -79, -27, -104, -29, -38, 42, -112, 57, 0, -24, 115, -74, -122, 116, 3, -5, 40, -14, 34, 0, -63, -17, -4, -104, -114, -66, -113, 38, -109, 9, -21, 10, -74, -67, 116, 48, 6, -4, -10, 12, 31, 108, 2, -50, -42, -77, 15, 112, -98, -123, -17, 33, 16, 97, -50, -32, 94, 102, 17, 91, -49, -104 ]
Opinion by Strang, C.: September 20,1877, Hugo Felitz was the owner of lot 5, section 30, township 11, range 16, Shawnee county, Kansas. October 5, 1881, he and his wife, Catherine Felitz, deeded an undivided one-half interest in Said property to the Topeka Water Supply Company. January 26,1882, said Hugo Felitz and wife deeded the remaining undivided one-half interest in said lot to the Topeka Water Supply Company. February 22, 1886, Hugo Felitz and wife entered into an agreement with H. C. Root and J. W. Campbell, whereby they agreed that if said Root and Campbell would commence a suit to set aside the deeds made by Felitz and wife to the defendant, and prosecute said suit to a successful conclusion, as consideration for their services therein they would convey to said Root and Campbell an undivided half interest in lot 5, above described. Said contract was acknowledged by Felitz and wife and immediately placed of record. March 1, 1886, Root and Campbell commenced a suit in the superior court of Shawnee county, in the name ,of Catherine Felitz, to set aside the deed from her husband and herself to the defendant. The petition in said case alleged, among other things, first, that the land conveyed by Hugo and Catherine Felitz to the defendant by said deeds was the homestead of said Felitz and wife; second, that Catherine Felitz had been adjudged insane, and was insane when she executed and acknowledged the deeds made by herself and husband to the defendant company; third, that said deeds were obtained from herself and husband by fraud practiced by the defendant; fourth, that said Catherine Felitz became well and restored to her reason in 1885. January 20, 1886, the defendant company demurred to the petition of the plaintiff in said superior court, but said demurrer was never heard. August 26,1886, Catherine Felitz, without the knowledge or consent of her attorneys, Root and Campbell, filed in said court an order dismissing said suit. September 9, 1886, the court, pursuant to said order, dismissed said case at the cost of the plaintiff therein, Catherine Felitz. December 8, 1886, J. W. Campbell and wife conveyed to H. C. Root all their interest in said lot 5. Catherine Felitz never in any way compensated Root and Campbell for their services rendered under said contract with her and her husband. April 28,1887, H. C. Root demanded of the defendant company a deed for the undivided one.-half of said lot, under his contract with Catherine Felitz, and the company refused to make said deed. April 29,1887, H. C. Root commenced his action to compel the defendant, as the grantee of Catherine and Hugo Felitz, taking subject to his interest in said land, to carry out the agreement of Catherine and Hugo Felitz made with him. In this petition, among other things, he alleges that, pursuant to the agreement between Hugo and Catherine Felitz with himself and Campbell, he instituted proceedings in the superior court to set aside the deeds made by Catherine and Hugo Felitz to the defendant, and prosecuted said suit until it was dismissed; that said suit was “dismissal agreed;” that the agreement upon which it was dismissed was, that the defendant therein should pay the plaintiff in said case $390, and give her and her husband a life lease of the land in controversy; and the plaintiff and her husband were to make a new and valid deed to said premises to the defendant, and dismiss the suit. The defendant herein demurred to the petition of the plaintiff below, which demurrer was overruled, and defendant answered, to which the plaintiff replied. The case was tried by the court without a jury, and judgment rendered in favor of the defendant. Plaintiff filed a motion for a new trial. Motion overruled, exception allowed, and the plaintiff comes here alleging that the court erred in overruling the motion for a new trial, and in rendering judgment for the defendant, when under the evidence and the law it should have been rendered for the plaintiff. This case turns upon the character of the judgment of the superior court in dismissing the case therein, in which Catherine Felitz was plaintiff and the Topeka Water Supply Company was defendant, and the effect of said judgment of dismissal upon the parties thereto and their privies. The plaintiff alleges that said judgment of dismissal was, under the circumstances under which he alleges it was made, an adjudication of the matters in controversy in favor of the plaintiff therein, Catherine Felitz — she receiving all the fruits of a victory, and the defendant yielding the same; and that therefore he has a right to have specific performance of the contract of Hugo and Catherine Felitz with himself and Campbell enforced in this suit. Mr. Root furnishes an elaborate brief upon the character and effect of said judgment of dismissal, with a forcible argument supported by numerous citations of authorities; while the defendant in its brief cites no authorities, and simply treats the authorities invoked by the plaintiff as not applicable to the case. It seems to us the defendant overlooked almost entirely the possible effect of the judgment of dismissal in the superior court, supplemented as it was by parol evidence showing, or tending to show, what the agreement between the parties to said suit was in connection with said dismissal. The plaintiff insists that said judgment of dismissal was a “dismissal agreed,” and that such a judgment is res judicata, and the authorities cited go a long ways in that direction. If such judgment is res judicata, what was settled thereby? It is claimed by the plaintiff that the material allegations in the petition of the plaintiff in that case were settled; that it was settled that the land in dispute, lot 5, was the homestead of the plaintiff therein and her husband when when they executed the deeds conveying said lots to the Topeka Water Supply Company; that said judgment settled the fact, as alleged in said petition, that Catherine Felitz was insane when she executed the said deeds conveying lot 5 to the Topeka Water Supply Company; and that the said Catherine Felitz was afterward, to wit, in 1885, restored to her reason. The record of the case in the superior court was admitted in evidence by the trial court, and thus became a part of the evidence to be passed upon in said court. Taking such record as it stood, unaffected by the parol testimony admitted in the case for the purpose of showing an agreement between the parties thereto, and we can readily understand how the trial court could have .rendered judgment for the defendant, even conceding the dismissal was a judgment, and as such res judicata, and a bar to the extent to which it went, for then such record would show a simple, voluntary dismissal of her case by the plaintiff. It then would be res judicata as to her rights therein, and a bar to any future claim by her to said property growing out of any right she at that time possessed, and probably a bar to the plaintiff herein, who claims under her and her husband. But when the dismissal, as shown by the record introduced, is affected by the parol testimony modifying said dismissal, and changing it from a simple, voluntary dismissal by the plaintiff of her cause of action at her own costs to a “dismissal agreed,”, which is an adjudication of the mat ters in dispute between tbe parties by themselves, and such adjudication as so shown establishes the fact, even prima facie, that by such adjudication the defendant practically admitted the contention of the plaintiff and treated with her upon that basis, and as no evidence was offered by the defendant to rebut the showing of the plaintiff in that regard, we fail to see upon what theory the trial court rendered the judgment it did. The plaintiff alleges that the judgment as rendered is against the evidence and the law. It seems to us, the plaintiff having made at least a prima fade showing by the introduction of the record of the case in the superior court and the parol testimony affecting and modifying it, that the judgment of dismissal in said court was a iudgment t of “dismissal agreed,” and, there being no evidence to rebut such showing, that the claim of the plaintiff is well founded, that the judgment of the court below is against the evidence. There are other questions in this case, but we do not care to discuss them. In sending this case back for a new trial, we prefer to let it go back affected by' as few restrictions as possible, leaving the case open for a full and complete trial of all the questions raised in the case, and only suggest that it be tried by counsel with more care than before, and that, in so important a case as .the record here presents, with so many important questions involved, there should be findings of fact upon all the important questions raised by the pleadings. Counsel for defendant argue in their brief that there is no evidence that the land in question was the homestead of Hugo and Catherine Felitz when they executed the deeds to the defendant company. We think they have overlooked the evidence in the case on that question. It is true there is not a great amount of evidence upon the question, but there is direct and positive evidence supporting the homestead allegation, and it is hardly rebutted by the uncertain aud incomplete evidence that the premises are within the city limits, and contain more than is allowed by our homestead provision in a city. All the deeds describe the premises as lot 5, section 30, township 11, range 16, in Shawnee county, Kansas, and there is no evidence that squarely places it inside the city limits. We are speaking of the evidence on this subject outside of the record of the trial in the superior court. Possibly that record itself settles the question, but as the case goes back, we do not care to pass upon that question. Counsel for defendant, in their brief, say there is no evidence of the insanity of Catherine Felitz. There is none except that which comes through the said record of the superior court; but possibly that is enough. It depends upon the effect given to the judgment of dismissal in the superior court, upon which hangs this entire case as the record is now made up. The defendant company did not offer the deed obtained by it from Hugo'and Catherine Felitz, August 26,1886, in evidence, and says in its brief that it did not in any way rely upon the title thus obtained. But that deed is in evidence in the case, and the evidence, as it now stands, shows that the defendant not only procured said deed for some purpose, but that it gave a valuable consideration therefor; and there is no explanation by the defendant as to the purpose in obtaining said deed, the real consideration therefor, nor as to whether said deed had any relation to the dismissal of the suit in the superior court by Mrs. Felitz. We recommend that the judgment of the district court be reversed, and the case remanded for a new trial. By the Court: It is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Johnston, J. : This was an action of replevin, brought by Gust. Nystrom, before a justice of the peace, for the recovery of personal property from Charles Nordmark and Mrs. Charles Nordmark, -which was described by him as follows: “Four old turkeys (one gobbler and three hens), of the value of 75 cents each; 20 young turkeys, of the value of 40 cents each; and all of the aggregate value of $11.” He alleged that the property was wrongfully detained from him, and that the damage for the wrongful detention was $8. The property was taken by an officer upon an order of delivery, but was returned to the defendants below upon the execution of a redelivery bond. The cause was tried with a jury, and a verdict was rendered in favor of the plaintiff, Nystrom, finding the right of property in him, and that the value of the same was $11, and assessed his damages for illegal detention at 60 cents. Judgment was rendered upon the verdict, and an appeal was taken by the Nordmarks to the district court. There, a motion was made to dismiss the appeal, upon the ground that the cause had been tried by a jury, and that the amount involved did not exceed $20. This motion was sustained and the appeal dismissed, and this ruling is assigned for error. Did an appeal lie from the judgment of the justice of the peace, which was that the plaintiff was entitled to the possession of the property or the sum of $11, the value thereof, in case a return could not be made, and that he recover the sum of 60 cents as damages for illegal detention? The justices’ code (§120) provides for an appeal from the final judgment of a justice of the peace in all cases, except where it is otherwise specially provided. Then § 132 of the act provides, that no appeal shall be allowed “in jury trials where neither party claims in his bill of particulars a sum exceeding $20.” It is claimed that the action of replevin does not come within the provision quoted, because the primary thing in question is the recovery of possession, and not the value of the property or the damages for its detention. While the gist of a replevin action is the wrongful detention, and the purpose is to obtain the return of the property, or, in case a return cannot be had, a recovery of the value of the same, together with damages for the wrongful detention, yet it is essential that the value of the property in controversy should be stated. It is expressly provided that the action shall not be brought until an affidavit is filed, containing, among other statements, the actual value of the property; and when several articles are claimed, the value of each article shall be stated as nearly as practicable. (§ 56.) In this way the amount in controversy or which is claimed by the plaintiff is disclosed. The affidavit may stand and be treated as the bill of particulars, and serve as the pleading under which proof is offered ; and it is also provided that the value of the property stated in the affidavit shall fix the jurisdiction of the justice as far as such value is concerned. (§62.) Where the property has been delivered to the plaintiff, and he fails to prosecute his action to final judgment, the defendant may have a jury impaneled to inquire into the right of property, and his right of possession to the property taken; and if satisfied that the defendant was entitled to the property at the commencement of the action, or is entitled to the possession at such time, they shall find accordingly, and further find the value of such property or the value of the possession thereof, and also damages for withholding the same. (§63.) It is further provided that, in all cases where the property has been delivered to the plaintiff, and the jury shall find for the defendant, either that he had the right of property or the right of possession, they shall also find the value of the property or the value of the possession (§64); and the judgment in such case shall be for the return of the property, or for the value thereof or the value of the possession of the same, in case a return cannot be had, and for damages and costs. (§65.) Then, again, “When the property claimed has not been taken, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as may be right and proper.” (§67.) When an action is brought by á mortgagee to recover chattels given by him as security, only the amount of his special interest is involved in the controversy, and the payment of the amount by the mortgagor or other interested person discharges the. lien and defeats the right of possession. It will thus be seen that the value of the property in controversy is a leading consideration from the inception (of the action of replevin until the rendition of the final judgment, and in some cases it is the primary thing in dispute. The amount claimed, or the value of that which is claimed, is shown throughout by the pleading and proceedings, and we are inclined to the opinion that the action comes fairly withinrthe spirit and purpose of the provision limiting appeals, where the amount in controversy is not more than $20, and there has been a jury trial. This question has been suggested, but never decided by this court. (Miller v. Bogart, 19 Kas. 117.) The case of Martin v. Armstrong, 12 Ohio St. 548, is referred to as an authority in favor of the right of appeal, but the Ohio code, under which the decision was made, does not require a statement of the value of the property in the affidavit for replevin, and this omission is one of the principal considerations upon which the decision rests. In Kansas, as we have seen, the value of the property must be stated in the affidavit, and this affidavit may stand as the pleading in the case. Under a somewhat similar provision limiting appeals in Vermont, it was held that the value of the property replevied, together with the damages demanded for its taking and detention, is the amount in controversy which determines the right of appeal, and that where the sum of these did not exceed $20, the action was not appealable. (Fisk v. Wallace, 15 Vt. 418; Andrews v. Baker, 59 id. 656. See, also, Cobbey, Replevin, § 1246.) The amount in controversy in the present case was $19, being the value of the property, which was $11, and the damages claimed, which were $8, and, therefore, the court correctly ruled that the case was not appealable. The judgment dismissing the appeal will be affirmed. All the Justices concurring.	[ -46, -2, -16, -84, 10, 96, 42, -38, 65, -95, 55, -45, -85, -61, 0, 99, 115, -19, 117, 105, -34, -77, 23, -128, -45, -45, -111, -59, -79, 109, -20, 71, 72, -80, -54, -107, 102, -54, -63, -44, -114, 5, 8, -17, -35, 40, -80, -87, 22, 3, 113, -34, -29, 46, 20, -61, 41, 40, 95, 63, -47, -39, -81, 13, 107, 22, -126, 102, -72, 71, -40, 46, 28, 57, 0, -24, 115, -74, -126, 84, 107, -69, 44, 102, 102, 0, 77, -26, -8, -87, 44, -70, 45, -89, -112, 88, 75, 101, -74, -103, -15, -44, 45, 116, -26, -107, -99, 100, 3, -6, -108, -77, -81, 108, -100, 75, -37, -109, 16, 117, -51, -96, 92, 87, 121, -101, -114, -106 ]
The opinion of the court was delivered by Johnston, J.: This was an action for the specific performance of a contract for the exchange of certain lands. W. J. Hodges, who brought' the action against J. R. Musgrove and Isabelle Musgrove, alleged, in substance, that he owned an 80-acre tract of land in Cowley county, upon which was a mortgage of $750; that J. R. Musgrove was the owner of 160 acres of land situated in Sumner county, against which there was a mortgage of $2,000; and that on or about the 23d day of August, 1888, an agreement was entered into between J. R. Musgrove and himself for an exchange of lands —that is, he was to convey his 80-acre tract, by a good and sufficient deed of warranty, to Isabelle Musgrove, the wife of J. R. Musgrove, subject, however, to the mortgage of $750, which was to be assumed by her, in consideration of which, J. R. Musgrove was to convey to Hodges, by a good and sufficient deed of warranty, his 160-acre tract, subject to the $2,000 mortgage, which Hodges was to assume and pay. It was alleged that Hodges had complied with all the conditions of the agreement upon his part, but that Musgrove had failed upon demand to execute a conveyance or to comply with the agreement which he had made. A trial was had, and the court 'made a general finding in favor of Hodges, decreeing that the plaintiff below should deposit with the clerk of the court an abstract of title and warranty deed for the 80-acre tract, conveying the same to Isabelle Musgrove, free and clear of all incumbrances except the mortgage of $750, which mortgage it was decreed that Isabelle Musgrove should assume aud pay. It was adjudged and decreed that J. R. Musgrove and Isabelle Musgrove should execute and deliver to Hodges a warranty deed conveying the 160-acre tract, free and clear of all incumbrances except the mortgage thereon for the sum of $2,000, which it was decreed Hodges should assume aud pay. Isabelle Musgrove alone complains of the judgment of the court, and the principal ground of complaint is, that she was compelled to accept a conveyance of land and assume an obligation without an agreement or any consent given by her. She has reason to complain. The contract between Hodges and J. R. Musgrove for an exchange of farms was not signed by or for her. By the terms of that contract the Hodges land was to be conveyed to her, and she was to assume the payment of the $750 mortgage which existed against the land. She had not consented to accept the conveyance of the land, or undertake the payment of the lien which existed against it; aud the court is powerless to make a contract for her, or to compel her to carry out the one which was made by J. R. Musgrove. It is said that the title to the land in Sumner county was in J. R. Musgrove, and that if the conveyance of the Hodges land was made to her she would only hold the title in trust for J. R. Musgrove, and it would have the same effect as if the conveyance had been made directly to him. Granting this claim, why should she be compelled to undertake the trust against her objection, and especially where there is coupled with it the personal assumption of a large indebtedness? No such burden can be imposed upon her unless she consents to assume it. When the contract was made, Hodges knew that the consent of the plaintiff in error was essential, and he took the chances that she would refuse to assume the burden and execute the conveyance in accordance with her husband’s agreement. Having declined the performance of the contract that was made, even J. R. Musgrove was incapable of executing the same without her consent; and hence the remedy of specific performance is not available. Where performance of a contract depends upon the consent of a third person, and that consent is withheld, the performance becomes an impossibility, and will not be decreed. (Pom., Spec. Perf., §295.) Defendant in error contends that the question of forcing a conveyance upon Isabelle Musgrove, and compelling her to assume the payment of the mortgage, was not presented or determined in the district court, but the record brought here shows that the question was raised by objections made by plaintiff in error to the testimony, and by a demurrer interposed by her to the evidence offered in behalf of Hodges, and hence the question cannot be overlooked here. The judgment of the district court will be reversed. All the Justices concurring.	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Opinion by Simpson, C.: The defendant in error brought an action in the district court of Chase county, against the plaintiff in error, to recover a judgment for a personal injury to himself, resulting, as he claimed, through the negligence of plaintiff in error. A trial was had by a jury, and a verdict of $700 returned in favor of defendant in error for that amount, and costs. This proceeding is to reverse that judgment. That portion of plaintiff’s petition which sets out the negligence claimed, and concerning which evidence was offered at the trial, reads as follows: “That on or about the 13th day of March, 1888, the said defendant was engaged in the digging and constructing of a tank well for its business, near its line of road, and also near to its round-house between Strong City and Cottonwood Falls, in Chase county, Kansas; that the said plaintiff was in the employ of the said defendant railroad company as a laborer, among others at said time, digging in said well, and filling dirt in boxes to be elevated out of said well; that said defendant had the furnishing, and it was its duty to furnish all the appliances, machinery, structures and conveniences in and about the digging, construction and operation of said well; that over the top of said well there was erected a scaffolding attached to piles driven in the ground; that between the four cross-timbers or beams that constituted the frame of said scaffolding there was a square opening through which the boxes for elevating dirt out of said well ascended and descended; that on the top of the frame of said scaffolding there were two upright shafts or pieces of timber secured at the bottom of said frame, and immediately over the top of said well; that on the top of said pieces there was a cross-piece of timber, to which, about midway, was attached a pulley, through which said pulley and another one attached to one of the upright shafts or pieces of timber above mentioned the rope that elevated and lowered said dirt boxes passed into a windlass that was operated by a steam engine that was stationed near s.aid well for that purpose, and that said engine was operated by an engineer by the name of Scott Sharper; that as fast as the dirt was taken out of said well by the operation of said appliances, it was deposited in a dirt car, that was run immediately over the top of the well to re ceive said dirt, and said dirt was conveyed away from said well in said dirt car, and upon a track built for that purpose, and upon which said car ran; that it was necessary, for the reasonable safety and proper security of the plaintiff herein, who was working in said well, that said square opening immediately over the top of said well be kept free and unimpeded, so that the rope should be, to the extent thereof, free and untrammeled in its operation; that said defendant, by its agents and servants acting under power and authority from the defendant, did, in the doing of said things, carelessly and negligently, and without reasonable care and prudence in the premises, place three heavy planks or boards, loosely and insecurely fastened, and unsuitable and unfitted, and improperly prepared for that purpose, upon the top of said well, upon the cross-beams aforesaid, thereby narrowing said square opening so that the rope could easily come in contact with said heavy planks or boards; that after having been so placed over the top of said well, they were by said defendant, its agents and servants aforesaid, carelessly, negligently altered and changed, and the inside plank was changed by cutting the same with an ax, so that a narrow and insufficient portion thereof only extended onto the frame on either end, and thereby rendering it less secure and more dangerous, hazardous, and perilous; and said defendant, by its agents and servants aforesaid, did negligently and carelessly suffer the said planks or boards to remain unsecured and out of repair, and each and all of said boards or planks so carelessly and negligently placed and altered as aforesaid, and suffered to remain as aforesaid, were -each and all extra hazardous and dangerous to the life and limb of persons working in said well, all of which was well known, at all times, to said defendant and its agents and servants aforesaid; that while the plaintiff herein was engaged in working in said well, and while a box was being elevated out of said well by means of the appliances aforesaid, said rope came in contact with said planks or boards situated and placed as aforesaid, and, without any warning or signal to plaintiff’ by said defendant or any of its servants or agents, and by the force or violence of the contact pulled one of said heavy planks or boards from its place down into the well and upon said plaintiff, which plank crushed, wounded and maimed the hand of said plaintiff, breaking and dislocating the bones thereof; that the placing of the planks or boards hereinbefore mentioned, and the alteration of the same so as render them less secure and more dangerous, and the allowing of the same to remain in the condition they were in at the time of the injury to plaintiff, were unknown to the plaintiff', but was known by the said defendant, its agents and servants as aforesaid; and said defendant, its agents and servants as aforesaid, knew that the position of the plaintiff in said well was extra-dangerous and hazardous to his life and limbs, by reason of said rope coming in contact with said plank, or either of them, and throwing the same upon said plaintiff in said well, and the same could have been known by the said defendant, its agents and servants as aforesaid, by the exercise of reasonable and ordinary care in the premises; that the plaintiff’s work in digging in said well and filling the boxes with dirt as aforesaid was an extra-hazardous and dangerous position, and required great diligence and care on the part of said defendant to guard against injury; that the placing of said planks as aforesaid and the altering of the same as aforesaid, and the allowing the same to be out of repair as aforesaid, and the carelessness and negligence of defendant’s engineer as aforesaid, and his incompetency, caused and produced plaintiff’s injuries as aforesaid.” To this petition the defendant below filed an answer containing a general denial, and the defense of contributory negligence; and upon the issues so made up the case was tried. The defendant prepared certain special findings of fact in said cause to submit to the jury for them to answer; that among the others, the following occurred: “How much, if anything, do you allow plaintiff as exemplary or punitive damages? “How much do you allow plaintiff for compensatory damages? “ What amount, if any, do you allow plaintiff for medical and surgical care — medical attendance? “And thereupon, when said defendant was about to submit said questions and the court had approved of their submission, the attorneys for plaintiff and defendant agreed in open court to submit said cause to the jury without argument, upon consideration that said special questions should be withdrawn, which condition was made by plaintiff’s attorney; which agreement was made in open court, and carried into effect by defendant’s withdrawing said questions, and thereupon said cause was submitted without argument to the jury. “Thereupon the jury retired to consider of their verdict, and that afterward, and on the 23d day of June, 1888, the jury returned into court their verdict, which is in words and figures following, to wit: “ We, the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff, and assess the amount of his damages at $700.” The material facts are that prior to the 13th day of March, 1888, the plaintiff in error dug a large well at its round-house between Strong City and Cottonwood Falls; and it also started a second one. This second well had been started in this way: A test-well six feet square, and curbed with boards, had been sunk to a depth of 30 feet — that is, a well 30 feet in diameter, having this testrwell in its center, was started by digging down to a depth of from 8 to 10 feet, leaving this test-well in the center. When the large well was sunk to a depth of from 8 to 10 feet, curbing was put around the inside, and then four piles, each 40 feet in length, were driven down so that they formed a square that was 12 feet each way — that is, from each pile to the other there was a distance of 12 feet, measured in any direction, and in the center of this square was the test-well. The tops of these piles, when sunk as far as they were to be sunk, were a little above the level of the ground; and, upon the tops being leveled and squared, a crib or framework of timbers was placed thereon, 12 feet square, except that the two timbers running east and west on each side extended to the ground. This crib was built up by timbers crossing each way on top of the first heavy timbers to a distance in height of some three or four feet; on the top of this crib were placed two upright timbers about 12 feet high, braced on each side to keep them upright, and another timber was placed upon the top of these two upright timbers, making a cross-beam, in the center of which was fastened a pulley. This pulley was directly over the center of the large well. A track was laid from the railroad track on the outside, and of the same gauge as it, north, and upon this crib, so that the same ran from the south to north of the center of the well a few feet. Aii engine located some 80 feet to the west of the well contained a drum for the purpose of winding up a rope running from it to a pulley at the foot of one of the upright posts, and from such pulley to the pulley over the center of the well, on the beam across these upright posts, from whence it hung down with an iron hook over the exact center of the large well. There were three dirt boxes, three feet square and three feet deep, which were made with movable bottoms, and chains running from the corners to a common center, into which the hook of this rope was fastened. The scheme was this: To lower these three dirt boxes, and as fast as one would be filled the hook at the end of the rope running over the pulley on the derrick would be fastened to the chains attached to the box, and upon a signal from the men who attended to loading the box and fastening the hook to it, the engine in the engine house would cause the drum to revolve, winding the rope up upon it, and thus causing it to hoist the box to the top of the opening on top of this crib, and up high enough to run a dirt wagon or buggy on this railroad track under it, when the bottom of the box would be unfastened and the dirt would drop out of it into the wagon, which would then be run down the track, on the crib, off and upon the railroad track. The opening through which the dirt boxes were hoisted was 4 feet 8 inches wide, and considerably longer north and south, making a hole probably 4 feet 8 inches east and west, and from 5 to 6 feet north and south. The top of this crib, outside of the hole, was planked over. On the north end of this railway track, which came from the railroad up onto this crib, were three planks about 1 foot wide, ,2 inches thick, and from 6 to 7 feet long. These three planks were nailed across the top of the scantling that held the track for two purposes: one to stop the dirt wagon or buggy from going any further north, when it was run up empty to receive the dirt from the dirt boxes, and the other to prevent the dirt falling out of this dirt wagon from falling back into the well, this dirt wagon being open on the north end. The day before the injury occurred, upon completion of the crib and track, the rubbish and stuff of that kind had been hauled up out of the well in these dirt boxes, and on the morning of the injury they had commenced to raise the dirt out of the well in the manner described, and had, prior to the time of the injury, hoisted up from three to five boxes. The foreman in charge of the work, believing that these planks spoken about, on the north end of the railroad track, prevented the dirt wagon or buggy from running far enough to the north, took an ax and either chopped out a piece on each track in the first plank, so that the dirt wagon could go further to the north, or else split off a part of the first or south plank to accomplish the same purpose. These planks were fastened to the scantling on which the track was laid, by from five to seven spikes in each end. It was claimed by the plaintiff below that the foreman split off so much of the first or south plank as to leave the remainder held by one spike in each end. Immediately prior to the accident, and after this plank had been cut, the plaintiff below and two other employés had taken an empty dirt box and placed it on the northwest side of the well, outside of the square made by the pilings, within about two feet from the outside embankment, and had there filled it. This box, when it was carried to the place where it was filled, was carried by plaintiff and his comrades, and had the rope hitched to it. When it was placed, the rope ran, from its connection with the box, on a slant, so that it bound on this plank that had been cut. This dirt box, when filled, weighed about 1,200 pounds. When this dirt box was filled the plaintiff gave the signal to hoist away, and took hold of the box to steady it. As the engine started and the rope straightened out, it threw this plank that had been chopped into up into the air, so that it fell on the north side of the crib, into the well, striking the plaintiff on his hand, breaking two or three of the bones; and this was the injury complained of. On the part of the plaintiff below, it was claimed that it was negligence for the foreman to chop into this plank so as to leave it fastened with any less spikes than it originally had to hold it in its position; and .that such negligence was the direct cause of plaintiff’s injury. On the other hand, the defendant claimed that plaintiff’s injury was solely and entirely caused by his own negligence, or the negligence of his coemployés combined, in this: that it was never intended, in putting these planks down, that the rope which hoisted the bucket should ever bind upon or come in contact with these planks in hoisting the bucket; and the men weré particularly warned and cautioned not to set the bucket so far to one side as to have the rope bind upon any of the timbers. If the rope hung straight down, it is an undisputed fact that it would be from three to three and one-half feet from it to this plank. If the dirt boxes were set anywhere inside of the square made by the piling, between the piling and the curbing of the test-well, the rope, when hitched to the dirt box, would not bind or rub upon this plank or any of the timbers. It was not expected or understood that the rope would catch on to these planks, and they were not put there for any purpose of that kind. Plaintiff’s injury was such that, under ordinary circumstances, he would be expected to recover from such injury in the course of about three months. There was some conflict in the evidence as to the warning of the foreman to the men not to set the bucket so far at the side as to make the rope bind upon the timbers, but the preponderance on that question was with the plaintiff in error. There was no evidence as to the value of the attendance of a physician, or as to his charges, or as to the liability of the defendant in error for his services. Prior to the accident, the defendant was receiving about $1.55 per day for his labor. The accident occurred on the 13th day of March, 1888, and the cause was tried on the 22d day of June, 1888. All three of the surgeons examined, one of whom was in attendance on the injured man, testified that the injury was not permanent. Without commenting at length on the facts, we are of the opinion that the case was not properly presented to the jury by the instructions, and that there was material error committed by the trial court in refusing certain instruc tions asked for by the plaintiff in error. No instruction was given respecting the burden of proof, and one that fairly stated that the burden was on the plaintiff, to prove the negligence alleged, was refused. One contention of the plaintiff in error at the trial was, that the employés, embracing the defendant in error, were several times warned of the danger there might be if they set the bucket so far back that the rope would bind upon the timber, and, as we have said, there was conflicting evidence about it. The defendant in error requested the court to give an instruction, numbered 6 in the record, that reads as follows: “The jury are instructed that if the plaintiff disregarded any warnings or cautions given to him either by the foreman in charge, or by a co-laborer, and that the disregard of such warning and caution in any way contributed to the injury complained of, that then in such case the plaintiff cannot recover.” This was refused, and no notice taken of such fact by any instruction given, except that the court did instruct the jury that— “An employé is bound to obey the orders of the person placed in authority over him, and if he disobeys, and an injury results to him, he cannot recover for such injury.” There is nothing in the record that any orders had been disobeyed. There is evidence that a caution or warning had been given repeatedly to the men, in the presence and hearing of the defendant in error, about the danger attending an improper location of the dirt bucket. This warning could not be tortured into an order, and the failure of the defendant in error to heed it, into a disobedience. This question was not so presented by the instructions that the jury could comprehend its import. The instructions did not notice that the defendant in error was charged with contributory negligence, and that there was some evidence tending to prove the same. No definition of “contributory negligence” was given or rule stated to guide the jury on the only defense made by the plaintiff in error. A special instruction was requested by the defendant in error which fairly embodied the law applicable to the state of facts as set forth in the record, and it would have been better, perhaps, to have also given the instruction asked. There were other instructions given that are subject to grave criticism, and others offered and refused that ought to have been given, but they are unimportant when compared to this instruction. The jury were told by the trial court, in these words: “If you believe from the evidence that the negligence of the defendant was of a gross and reckless character, and defendant’s conduct lacking in all elements of caution and regard for the safety of the plaintiff, you are at liberty to award what are termed exemplary or punitive damages; that is, damages which are given, not on account of any special merit in plaintiff’s case justifying the same, but as a warning and lesson to the defendant, to teach it greater respect and care for the rights and safety of others.” Now, we have searched this record in vain to find the utterance of a single witness, or the recitation of any one particular fact, which could by fair construction or just inference be considered as tending to establish wanton negligence, or gross or reckless conduct upon the part of the servants and employés of the railroad company. There is absolutely no testimony to warrant such an instruction. For this alone, if there were no other reasons, this case must be reversed and a new trial ordered. (K. C. Ft. S. & G. Rld. Co. v. Kier, 41 Kas. 671; K. P. Rly Co. v. Cutter, 19 id. 83; City of Parsons v. Lindsay, 26 id. 426; K. P. Rly. Co. v. Peavey, 29 id. 169.) It is recommended that the judgment be reversed, and the cause remanded, with instructions to grant a new trial. By the Court: It is so ordered. All the Justices concurring.	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Chief Justice Horton, speaking for the court, delivered an oral opinion in the above cases, in substance as follows: These proceedings have been commenced in this court by mandamus to enable certain persons, who were employés of the senate, acting as a court of impeachment, to recover their compensation for their services. The state treasurer, in one ease, has refused to register and countersign the warrant issued by the auditor,'and has refused to recognize it. In the other case, the auditor of state has refused to audit the claim of the employé, and has also refused to issue any warrant for his services. The court has examined the various provisions of the statute which have been referred to. The claim is first made that, under § 3 of chapter 25 of the Laws of 1891, the senate had authority to transfer from the appropriation made to it of $8,000 for the per diem and mileage of its members, any balance not necessary for the pay of its members. It passed a resolution transferring a portion of the $8,000 for the secretary, stenographer, and other officers of the senate. The conclusion of the court is, after giving the matter as much attention as it has been able to do in the time allowed, that § 3 of chapter 25 is a specific appropriation for the various amounts for the purposes therein named. For instance, there is no general appropriation for any amount to pay the whole expense of the trial.There are specific appropriations only. First, for the per diem and mileage of members of the senate and the president thereof, while sitting as a court of impeachment, $8,000 is given. There is a specific appropriation for the compensation of the secretary, stenographer, and other officers of the senate, of $2,000 only. Had the legislature, as it had the power to do, simply provided that $27,500, or any other general sum, was appropriated to pay the expenses of the trial, such an amount could be drawn out for that purpose. Section 3 of said chapter 25 reads as follows : “To pay the expenses incidental to the trial of Judge Theodosius Botkin, who has been impeached by the house of representatives of high misdemeanors in office, there is hereby appropriated the following sums, or so much thereof as may be necessary, to wit: For per diem and mileage of the members of the senate and president thereof, while sitting as a court of impeachment, $8,000; per diem and mileage of the board of managers of the house of representatives and counsel and stenographer, to be appointed by said board, $1,500; compensation of secretary, stenographer, and other officers of the senate, $2,000; for service of process, $1,000; per diem and mileage of witnesses, $15,000.” Now, if the state senate had the right to transfer from the $8,000 any balance thereof for the compensation of its officers or employés, it had the same right, under said §3, to transfer it for the purpose of paying counsel or anyone else employed in the trial. The constitution of the state ordains that “No money shall be drawn from the treasury except in pursuance of a specific appropriation made by law.” (Art. 2, §24.) Upon an examination of §3, we find that specific ap propriations were made for several distinct and separate purposes, and this court has no authority to make any change in that section; and the legislature having specified the particular amounts for the several purposes, they can be used for those purposes, but those only. It is next argued that, if §3'of chapter 25 cannot furnish money for these employ6s, they ought to be paid from the general appropriation for'the expenses of the legislature, under § 1 of chapter 25. The cardinal rule of construction is, that the intention of the legislature must control, and where there is appropriated a certain sum of money for the pay of members of the legislature and its officers and clerks, the ordinary conclusion would be that it is to apply to both houses of the legislature and its officers while in session as a legislature, and not while one body thereof is acting as a court of impeachment. Section 2 of said chapter 25 provides: “That the pay warrants for the members of the legislature for the last 10 days of service shall not be drawn by the auditor of state until three days after the expiration of the 50 days of regular session, or upon the final adjournment of the legislature previous to the date herein fixed.” We think that the proper construction of said §3 is, that the legislature intended to make a specific appropriation for the expenses of the impeachment trial of Judge Botkin, and did not intend that any other moneys should be used for that trial than those appropriated in said § 3. In carrying out the intent of the legislature, we must hold that there is no money appropriated to pay any compensation for the officers or employés of the senate during the trial of Judge Botkin, excepting the specific sum of $2,000. It may be possible that the legislature intended that $2,000 should be the limit of the expenses for those purposes, and having appropriated $2,000 only, this court cannot now say that the employés should be paid out of some other appropriation, or that more should have been appropriated. The state treasurer and the auditor must act in accordance with the specific appropriation named in said § 3. It is further urged that the auditor should be required to issue his warrant, whether there is any balance of tbe specific appropriation remaining in the treasury or not. An examination of the provisions of the statute in regard to the duty of the auditor clearly shows that the auditor must take notice of what money has been appropriated for any specific purpose, and when that amount has been fully exhausted by claims presented and audited, he has no authority to allow or audit other claims and issue warrants therefor. (Gen. Stat. of 1889, ¶¶ 6582, 6597, 6676.) The warrant issued by the auditor was not, in our opinion, issued in conformity with the provisions of said chapter 25. The treasurer properly refused to recognize it. The auditor has no right, in the absence of a sufficient appropriation, to issue warrants generally, to be provided for by some future legislature. Considering all the terms of chapter 25, we cannot find our way clear to allow this writ. “ The laborer is worthy of his hire,” and it is very unfortunate that provision was not fully made by the late legislature for the payment of all the expenses of the impeachment trial. It provided that $2,000 should be appropriated for the officers or employes of the senate during the trial, and until further action is taken by the legislature, no more than $2,000 can be used to pay these parties. We cannot order the payment of the amounts prayed for, as this court cannot change the statute. The writs of mandamus in both cases will be denied. We regret this result, but we do not make the laws; we only interpret them. All the Justices concurring.	[ 48, 106, -16, -8, 42, 32, 42, -102, 65, -95, -63, 83, -7, 18, 0, 119, -29, 29, 85, 107, -60, -77, 55, 123, 50, -109, -39, -41, -79, -20, -20, -33, 76, 60, -54, 85, 70, -32, -61, 84, -122, -124, -85, -55, -37, 0, 48, 121, 114, 73, -15, -50, -13, 44, 24, 66, -56, 44, 91, 59, -128, -79, -98, -113, 95, 7, -111, 7, -104, 3, -56, 62, -104, 49, 72, -24, 123, -90, -126, -48, 107, -71, 40, 98, 102, -111, -27, -95, 52, -120, 39, -37, -97, -27, 19, 81, 11, 73, -74, -99, 61, -128, 7, 118, -89, -43, -35, 100, 55, -114, -42, -93, -113, 45, -114, 82, -57, -93, 4, 97, -52, -16, 93, 103, 51, -103, -118, -96 ]
Opinion by Simpson, C.: W. S. Jay caused an alternative writ of mandamus to issue from the district court of Lyon county to the board of education of the city of Emporia, to show cause why he is not permitted to act and serve as a member of the board. He alleged that in 1874 territory lying outside of, but adjacent to, the limits of the city of Emporia, was duly attached to said city for school purposes; that an election was duly ordered and held in 1874 for two members of said board, representing said territory; that from that time until May, 1890, said territory has been continuously represented on said board by members duly elected and qualified; that he was duly elected a member of said board in 1888, and acted as such during the succeeding two years; that he was duly reelected in 1890, and qualified and acted as such until the 5th day of May, 1890, when a majority of said board excluded him from his seat; and that no election for member of the board was ordered or held in the year 1890, and no successor elected, but that he holds over until a successor is elected and qualified. The board of education filed its answer to the alternative writ, admitting the election of members from the attached territory from 1874 until the last election of Jay; claimed that at an election held in 1889, one Caull claimed to be elected, but the board refused to canvass the vote and declare the result; and that no election has ever since been called by the board. The board admitted that if said outlying territory is entitled to representation and if the said Jay is entitled to hold his office for more than two years, and until his successor is elected and qualified, in such case he is a member of the board; but it alleged the fact to be that at no time before or since the 20th day of March, 1874, has the outlying territory mentioned and described in the alternative writ ever had a population equal to that of the smallest ward in the city of Emporia, and it never has had, during that time, an assessed valuation of property within its limits equal to that of the smallest and poorest ward in the city of Emporia, and that by reason of these facts, said outlying territory is not now, and never has been, entitled to representation on said board of education. Jay filed a motion to quash the answer and return, upon the ground that it contains no defense; and he further moved the court for a peremptory writ upon the pleadings. These motions were overruled by the trial court, and these rulings are assigned as errors here. If the allegations in the return and answer, that the outlying territory never was entitled to representation for want of population and assessed valuation of property equal to that of the smallest and poorest ward in the city, stood alone, there could be no successful contention but that the return and answer stated a complete defense. The claim of counsel for plaintiff in error, however, is that by reason of the other recitations in the return and answer showing acquiescence for 16 years — a de facto representation all that time — that the board of education is estopped from now asserting that the outlying territory is not entitled to representation. It is also said on behalf of the plaintiff in error that the legality of his election cannot be determined by a mandamus proceeding. The authorities cited to sustain the de facto representation are all cases that go to the existence of a school district, or other public corporations. There is no question here as to the legality or existence, either legal or de facto, of the board of education of the city of Emporia. Jay’s action is founded on the theory that the board of education of the city of Emporia is a legal body, and that he is a member of it. If he had been permitted to meet with the board and participate in its proceedings, a question might have arisen as to whether he was acting as a defacto or a dejure member of the board. A de facto officer is one who is surrounded with the insignia of office, and seems to act with authority. We find difficulty in making an application of the de facto principle to the details of this case. It will not do to say that the board of education of the city of Emporia, by calling elections in the outlying territory from 1874 to 1889, and by permitting persons to act as members from that territory during all that time, has created a de facto right of representation. A public or private corporation may have a de facto existence. We all know there are de facto officers. There may be a de facto court or office, the legality of which cannot be called in question except in a direct proceeding by the state, as when a court or office is established by a legislative act apparently valid, under which a court has gone into operation or an office is filled and exercised. There may be de facto schools and school-masters, and even de facto school-houses. (Kidder v. Chellis, 59 N. H. 473.) A man may have a de facto wife, being one whose marriage is voidable by decree. (4 Kent’s Comm. 36.) But this is about the limit of a principle that has grown out of an imperative public necessity. An office must be created by law; but an officer may be created by place, surroundings, appearances, and circumstances. But this one thing all lawyers agree about: that an office that does not have a de jure existence cannot have a de facto incumbent. If the outlying territory is not entitled to representation, if there was no such office as member of the board of education from the outlying territory, neither Jay’s presence on the board, nor the length of time others had intruded on the board, or other acts of the board, could create an office not provided for by law. We are not considering Jay’s ae- . tion as a member ot the board, or how his acts as such might affect third persons or the public. The inquiry he makes is as to whether he is entitled to a seat as a member of the board. To maintain this action, he must show that the board of education in its refusal to recognize him as a member is violating some plain duty enjoined by law. His right depends upon the existence of certain statutory conditions, and these are that the outlying territory he claims to represent contains a population equal to that of any one ward in the city, or that its taxable property equaled that of any one ward in the city. The answer says neither of these conditions ever did exist, and there is nothing recited in the answer that mutilates or destroys the force and effect of the fact stated, either by acquiescence, estoppel, or the previous service of persons as members of the board from the outlying territory. While as to such service their acts might be held good, as those of defacto officers, yet they create no succession, or originate no right of representation which by time and acquiescence can ripen into legal right; and, to succeed, he must show that he was legally elected. It is not necessary, we think, to consider any other question discussed by counsel, as our decision is based upon the fact that there was no such office as member of the board of education of the city of Emporia from the outlying territory. This decision, being on demurrer to admitted facts, is final, unless the facts are not fairly stated in the answer. We recommend that the ruling of the district court adverse to the motion to quash the return be affirmed. By the Court: It is so ordered. All the Justices concurring.	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The opinion of the court was delivered by Valentine, J.: The court below, in rendering judgment in this case, delivered the following opinion, to wit: “This is an action to restrain the issuance of bonds claimed to have been voted by Ozark township to pay for stock in the Colony, Neosho Falls & Western Railroad Company. It is conceded that a proper petition was presented, the order made, notice given and the election held according to law. It appeared, however, that, three days before the day named for the election, the voters of the township and the railroad company alike became convinced that the proposition, which was for a subscription for stock to the amount of $18,000, and the issuance of bonds- therefor, would be lost, but it was believed that a less sum could be voted. Thereupon, as the result of a meeting of the board of directors with some 50 citizens of the township, the company offered, if the proposition was carried, to, and did, relinquish its claim to all but $10,000 of the bonds, reserving the right to issue only that amount of stock. Such offer and relinquishment, duly executed by the proper officers of the company, were thereupon published, posted, and mailed to the voters, who were thereby induced to and did vote for the bonds, so that the proposition was carried. But for such action, it would have been defeated. The company filed its relinquishment to such excess with the county clerk. The board duly canvassed the vote, declared the proposition carried, and ordered the clerk to subscribe for $10,000 only of said stock, upon the, terms and conditions stated in the petition, order, and notice, which was done. The company, having built its road as provided in the proposition, offered to deliver the proper certificates for $10,000 of said stock, and demanded the issuance and delivery of the bonds. No claim is made to the $8,000 excess, but the relinquishment thereof is treated as valid and effectual by both parties. “The exact question then is, whether upon a petition, order, notice, and election, under the act in question, (Comp. Laws of 1885, pp. 783-4,) authorizing a subscription for a certain amount of stock, a township can be legally compelled to ac cept and pay for a less amount, under the circumstances appearing in this ease. The sole authority for such subscription is the statute, and §69 provides: ‘Before such subscription . . . shall be made, the question shall first be submitted to the qualified electors of the township at a special or general election, as . specified in the petition, which petition shall also designate the railroad company, and the amount of stock proposed to be taken.’ The next section requires that such petition shall be presented, the board convened, and the order made, ‘embracing the terms and conditions set forth in the petition.’ Manifestly,- the presentation of such a petition, signed by two-fifths of the resident tax-payers, is a condition precedent to the order of the board, and the order for and the affirmative vote upon the proposition so submitted are conditions precedent to the subscription. The commissioners are the agents of the township. (U. P. Rly. Co. v. Comm’rs of Davis Co., 6 Kas. 256; L. L. & G. Rld. Co. v. Comm’rs of Douglas Co., 18 id. 169; Turner v. Comm’rs of Woodson Co., 27 id. 314.) But such agency is special and limited, and rests upon the express assent of the voters. (Lewis v. Comm’rs of Bourbon Co., 12 Kas. 186.) The preliminary steps constitute the authority of the commissioners to make the subscription, which is the contract. (U. P. Rly. Co. v. Comm’rs of Davis Co., supra.) The vital question is, whether the subscription is valid, and this must depend upon the power of the commissioners to make it under the existing facts. That power, we have seen, ‘rests upon the express assent of the voters,’ and that assent must be shown in the manner provided by law. There must, of course, be a valid election authorizing, not a subscription, but the subscription actually made. (Gulf Rld. Co. v. Comm’rs of Miami Co., 12 Kas. 230; Lewis v. Comm’rs of Bourbon Co., 12 id. 186.) And before the election there must be a petition, not for a proposition to subscribe generally, but designating ‘the amount of stock proposed to be taken;’ and then thirty days’ notice must be given. A less time invalidates the bonds that may be voted. (George v. Oxford Township, 16 Kas. 72.) A special election, as the court says in the case last cited, ‘depends for its validity upon being legally called, and upon legal and proper notice thereof being given.’ Now, if we attempt to uphold this subscription upon the argument that the reduction of the amount by the company, accepted and acted upon in good faith by the voters, was equivalent to a change in the proposition, we are met by the difficulty already indicated by the citation of authorities, viz., that there was no petition, order or notice for an election upon such a modified proposition, all of which steps are jurisdictional. Besides, the people had only two days’ notice upon which to consider and discuss the grave matter of placing a lien upon all the taxable property of the township. They had already discussed, and, it appears, condemned the pending proposition. Who shall say that they might not have repudiated this new and modified one, had time for deliberation and discussion been given? But, passing over all questions as to the petition and notice, the election itself, when canvassed in any manuér known to the law, did not authorize the subscription made. The will of the voter must be determined from the ballot; its language must govern when the terms used are such as to make known his will beyond a reasonable doubt. (Clark v. Comm’rs of Montgomery Co., 33 Kas. 202.) It cannot be that the terms used, taken in connection with the proposition submitted, plain and certain as they were in the case, can be varied or contradicted by any prior understanding of the voters, however general, that their ballots should be held to mean something different. If elections are to depend upon such loose and uncertain considerations, then a government resting upon the ballot is indeed precarious. “Nor can this subscription be upheld upon the proposition that the greater includes the less. ' Possibly, that might be urged if this was a donation or gift, merely, but it is not. This was an attempt to subscribe for stock in a railroad company, and to pay therefor, as any other subscriber, dollar for dollar. It was a business venture which, however hazardous, the township might engage in, provided lawful methods were observed. If A offers to take stock in a corporation to a given amount, which offer is accepted, can he be legally compelled to take and pay for a less amount? Every man has a right to determine the quantity of any commodity he will buy, and the seller may not be allowed to coerce him into taking less. And a township contracting for stock in a railroad company is after all only a contracting party, and, being charged with the liabilities, it must have the corresponding rights of any other. So, here, this township had the right to determine what amount of stock it would take, and it could only determine it in the way provided by law. Solemn legal formalities, carefully designed to protect the tax-payer against the improvident assumption of grievous burdens by the voters, are not to be lightly set aside by the resolutions of a casual meeting of citizens. This is a government of laws. It is free because it rests on the consent of the governed; but that consent must be given by certain well-defined methods sanctioned by law. The vast volume of municipal debt incurred in aid of railroad building is a sufficient reminder that the legal barriers against the hasty assumption of such burdens are none too strong, and certainly should not be weakened by judicial interpretation. The conclusion is that the subscription in question was made without lawful authority, and is void. “It is urged, however, with great earnestness, and with reference to the numerous authorities, that the township is estopped from dénying the validity of the subscription, the road having been built in reliance upon it. The law of equitable estoppel, however, cannot be invoked, for two reasons: First, the subscription, which is the contract, being void, no legal rights in favor of a party to it can be founded upon it; (Sheldon v. Donohoe, 40 Kas. 346;) and second, because the railroad company had full knowledge that the preliminary steps did not warrant the commissioners in making the subscription. The company did not build its road rightfully relying upon the validity of the subscription, for it initiated and carried out the very proceedings that made the subscription void. (Bigelow, Estop., pp. 466, 467; Bernstein v. Smith, 10 Kas. 60; People v. Cline, 63 Ill. 394.) “After all, it seems that the simple inquiry is whether the forms of law have been complied with so far as to make a valid contract. If they have, it should be sustained; if they have not, it must fall. The court cannot make and then enforce a contract. Certain solemn forms of procedure have been prescribed to protect the tax-payers, that nothing be done without their consent. These are all the protection the tax-payer has, and should not be frittered away by judicial construction. So says our supreme court in substance in Lewis v. Comm’rs of Bourbon Co., 12 Kas. 186. It must be remembered that this is not a case where the municipality has received the fruit of another’s labor or expenditure, and refuses to pay therefor, although retaining and enjoying such fruits, as in Sleeper v. Bullen, 6 Kas. 300. Nor is it the case of part performance by one, and acceptance by another. The company owns its road; it has parted with nothing which the township has received; the township has accepted and appropriated none of its materials or labor. The road was not built for the township, but for the company. It was built presumably for profit, as a legitimate business enterprise, and now the township declines to accept and pay for the stock offered, for the reason that it never'contracted to do so. (M. K. & C. Rly. Co. v. Parsons, 24 Kas. 170.) “The injunction against the issuance of the bonds should be made perpetual.” The paramount question presented in this case is substantially as follows: Where an election has been held in a township authorizing a subscription to the capital stock of a railroad company to the amount of $18,000, and authorizing the issuing of a like amount of township bonds to the railroad company in payment for such stock, but three days prior to the election it was agreed between a portion of the electors of the township and certain agents of the railroad company that, if the election should be in the affirmative, the amount of the subscription and of the bonds to be issued should be only $10,000, and the election resulted in an affirmative vote authorizing a subscription to be made and bonds to be issued in the amount of $18,000, but immediately afterward, in a proceeding instituted by a tax-payer and an elector of the township, the officers and the railroad company were enjoined from making a subscription or issuing or receiving an amount of bonds exceeding $10,000, and the subscription was then made for $10,000, and the railroad company accepted the subscription and relinquished all claim to an amount of bonds aboye that amount, and afterward the railroad was built and all the other conditions imposed upon the railroad company by the proposition voted upon were complied with and fulfilled by the railroad company in pursuance of such election and oí such subscription, is the railroad . A ' company entitled to the bonds of the township to the amount of $10,000? We think this question must be answered in the affirmative. It is contended, however, by the township that the aforesaid agreement between a portion of the electors of the township and the agents of the railroad company, that, if the election should result favorably to the subscription and the issuing of the bonds, the amount of the subscription and the bonds should be only $10,000 instead of $18,000, was in effect or tantamount to a bribe to the voters, which rendered the elec£jon absolutely and wholly invalid. There certainly cannot be anything in this. And it does not appear that the court below so held. It is also claimed that the election was not an election at all for any purpose, for the following reasons: First, it is claimed that it was not an election for a subscription and bonds to the amount of $18,000, for the reason that a portion of the electors and the agents of the railroad company agreed otherwise; and, second, it is claimed that it was not an election for a subscription and bonds in the amount of $10,000, or any other amount less'than $18,000, for the reason that no valid election was ever called, ordered or provided for, for any less amount than $18,000. Now we think the election was in fact an election, and that prima fade, and upon the records of the county and township, it was an election for a subscription and bonds to the amount of $18,000, but in all fairness and justice it was an election for a subscription and bonds in a sum not exceeding $10,000. We think the election was valid to the extent at least of authorizing a subscription and the issuing'of bonds to the amount of $10,000; or, in other words, it was not wholly void. It is also claimed that there cannot in any case be a subscription made or bonds issued for any less amount than that actually voted for by the electors of the township. This certainly cannot be true, as has already been held by this court in the case of Turner v. Comm’rs of Woodson Co., 27 Kas. 314. This question has also been virtually decided in the same way by the supreme court of Alabama. (Winter v. City Council of Montgomery, 65 Ala. 403; same case, 7 Am. & Eng. Rld. Cases, 307.) This last case cited is as nearly in point, as nearly applicable, as nearly analogous, to the present case as it could well be, and we know of no authority to the contrary; and the principle enunciated in the cases cited is substantially, that when authority is given to the officers of a public corporation, by an election or otherwise, to issue a certain amount of the bonds of the corporation, the officers will have the power and the right, whenever there is a sufficient reason therefor, to issue a less amount of the bonds of the corporation. This we think is good law; and we think there was and is ample reason for the issuing of Ozark township bonds to the amount of $10,000 instead of $18,000. Besides, it is evidently greatly more to the interest of Ozark township that only $10,000 in amount of its bonds should, be issued than that the whole amount of $18,000 of its bonds should be issued. The township has by the election and subscription procured the railroad to be built, and has obtained all that it expected to obtain from the railroad company. The railroad has been built and equipped in accordance with the election and subscription, and it is now to the interest of the township that as small an amount of its bonds should be issued as is possible. The stock of the railroad company is probably worth but little, and the issuing of the bonds for such stock is virtually a donation. This is nearly always the case in similar transactions, and all well-informed persons know it. Undoubtedly the railroad company would be perfectly willing to issue to the township $18,000 of its stock if it could thereby procure a like amount of the township bonds. Such a thing would be very much like giving nothing for something. The object of the law in permitting public corporations to subscribe for stock in railroad companies, and to issue their bonds in payment therefor, is not intended as a business transaction like that consummated by an individual when he purchases stock and pays therefor in money or in something else. It is merely for the purpose of procuring greater facilities for travel and transportation for the general public, which is always considered as a public purpose, and not merely as a private purpose, enterprise, or business transaction. The act itself authorizing counties, townships and municipal corporations to subscribe for stock in and to issue bonds to railroad companies is entitled “An act to enable counties, townships and cities to aid in the construction of railroads,” etc. (Laws of 1876, chapter 107.) This shows that the main object of the act was to enable counties, townships and cities “to aid in the construction of railroads,” and was not to permit such corporations to engage in such transactions as a mere business venture, or as an investment in stocks, or a speculation in bonds and stocks. Twenty years ago it was said by this court, in the case of Comm’rs of Leavenworth Co. v. Miller, 7 Kas. 528, 529, 532, among other things, as follows: “If a railroad company is purely a private corporation, and if the construction and operation thereof is purely a private purpose, neither the government nor any municipal corporation has any right to become a stockholder therein. Governments were not organized for the purpose of engaging in private enterprises or private business, but only for the transaction and promotion of public aifairs. Even if the purchase of stock in a railroad company should be a paying transaction as an investment, (which, unfortunately for counties and municipal corporations, it is not,) still a governmental organization would have no right, for that reason alone, to engage in it, for governmental organizations are not created for purposes of specu lation, nor are they created for the purpose of enriching' the organization as such, but only for the purpose of promoting the general welfare of the individual members thereof as citizens. The increased facility for travel and transportation is the main object in the creation of railroads, and this it is which constitutes a railroad a public purpose. All other benefits, though belonging of right to the public, are simply incidental.” (Pages 528 and 529.) “The opening of hotels, the running of stage-coaches, hacks, drays, etc., have never been considered as incumbent upon governments. Governments have never undertaken to keep hotel, run stage-coaches, etc., and it has never been considered that there was any moral or legal obligation resting upon them to do so. But the duty of opening highways, canals, and other like improvements for the accommodation of travel and commerce, has always been considered most binding upon all governments.” (Page 532.) In the ease of Winter v. City Coimcil of Montgomery, above cited, the supreme court of Alabama used the following, among other language: “We do not discover that the city council varied the propositions which were submitted to and approved by the voters at the election. The proposition was, when fairly construed, that the city should extend aid to the railroad company by the issue of its bonds to an amount not exceeding one million of dollars, which were to be employed in building and equipping the road. It was not pecuniary gain, nor any of the advantages which would accrue to an individual from membership in the railroad company, that formed a motive or inducement tor clothing the city with the power to aid in the construction of the road. The benefits which would result to the commerce and industry of the city, the increased facilities of access to it, were the purposes for which the power was conferred. If these could be secured without involving the city in a debt of one million of dollars, it was not only within the power, but it was the duty of the city council to secure them for the least practicable sum. The power to create the larger included the power to create the lesser debt. Oinne magus continet in se minus.” (Page 319.) The sovereign power of eminent domain is always exercised in favor of railroads, because they are considered as public purposes, as instruments of commerce and of travel and transportation, and not because of any stock which might be held in them by any public corporation. We do not think that the agreement between a portion of the electors of Ozark township and the agents of the railroad company prior to the election, or anything else that occurred prior or subsequent to the election, will so invalidate the election or so destroy the rights or claims of the railroad company that it may not demand and receive the bonds of Ozark township up to the amount of $10,000, and we so decide without reference to any question of estoppel or of res adjudicata; and we might here say that the railroad company claims under both. It claims that as the township permitted the railroad company to construct and equip its railroad upon the faith of the aforesaid election and subscription, the township is now estopped from claiming that either the election or the subscription is void; and that, as the injunction suit between the aforesaid tax-payer and elector of Ozark township and the railroad company and the officers whose duty it might be to make the subscription and to issue the bonds of the township resulted in the granting of an injunction restraining the subscription and the issuing of the bonds only to the extent of the excess over and above $10,000, and permitting the officers to make the subscription and to issue the bonds to the amount of $10,000, and permitting the railroad company to accept and receive such an amount of the township bonds, all the substantial questions presented in this case were virtually adjudicated in and by that case, and have become res adjudicaba. 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Opinion by Simpson, C.: This is an action begun by the Harvey County Bank and R. M. Spivey, as plaintiffs, against John F. Wafer, who was then sheriff of Harvey county. Wafer, as sheriff, had seized, under various orders of attachment, a stock of goods belonging to the attachment debtor, R. M. Hamill. The bank and Spivey claimed to have the right to the possession of the attached property by virtue of a chattel mortgage thereon, executed by R. M. Hamill on the 20th day of March, 1884. The attaching creditors were made parties, and filed answers alleging that the chattel mortgage was fraudulent and void as against them. The case was tried by a jury at the March term, 1883, of the district court of Harvey county. The jury returned a verdict for the bank, and fixed the value of the goods at $21,896.17, and the value of the plaintiff’s right of possession at $12,095.03. A motion for a new trial was overruled, and a judgment rendered on the verdict. The material facts disclosed at the trial are these: For many years prior to the commencement of this action the firm of Hamill Bros, had been engaged in merchandising in the city of Newton, and was a firm of good credit and of high repute. As a matter of fact, on or before the 20th day of March, 1884, the firm, and especially D. Hamill, the principal partner, was largely indebted, both as a member of the firm and individually. D. Hamill was the active and controlling member of the firm, and his brother, R. M. Hamill, appears up to a certain date to have been subordinate. There is evidence tending very strongly to show that in October, 1883, the firm was dissolved, a notice of dissolution was published, and in the next issue of the paper after the publication of the notice of dissolution the card of the business firm was changed from Hamill Bros, to D. Hamill. The terms of this dissolution were such that £). Hamill assumed all the debts and liabilities of the firm, and alone had the right to collect all the claims and outstanding accounts of the old firm. In January, 1884, a contract was entered into between I). Hamill and R. M. Hamill that reads as follows : “This Agreement Witnesses, That in consideration, and as a full, final settlement of the respective rights, claims, accounts and interests of D. Hamill and R. M. Hamill, recently partners as Hamill Bros., the said parties have agreed and do hereby agree upon the following: R. M. Hamill shall be solely liable for all goods purchased and put into the store situated upon the lot hereafter described, from and after the 1st day of January, 1884, and said D. Hamill shall in no event be liable in any way for any portion of such goods, and has no interest therein except as herein specifically provided; said R. M. Hamill may, for the purpose of establishing his own business interests, advertise said business as his own, and purchase and incorporate into said stock of goods such goods as he may desire upon his own individual credit. Said R. M. Hamill shall contribute his own efforts toward the carrying on of said business in the same way and under the same conditions and restrictions that he has been since the 1st day of January, 1884. Until all the debts owing by the former firm of Hamill Bros., as shown by the books of said firm, are fully paid, D. Hamill shall remain in charge of said business as financial manager thereof, applying the net proceeds of all sales to the liquidation of said debts of Hamill Bros, until the same are fully paid. All goods in said store, whether they are goods formerly owned by Hamill Bros., or such as have since been or may in the 'future be put in said store by R. M. Hamill, shall be subject to sale in the ordinary course of business, and the net proceeds of such sale to be applied in liquidation of the debts of said firm as above agreed upon. When all of said debts have been fully paid, as above indicated, then said R. M. Hamill shall be the absolute owner of all goods in the store, and said D. Hamill shall execute and deliver to him a bill of sale for all of his interest therein, and deliver to him the absolute and exclusive control of said business and all goods in said store. The store herein referred to is that kept in the building upon lot No. 8, in block No. 38, in the city of Newton, Harvey county, Kansas; and the said D. Hamill, being the owner of said lot and building, together with the fixtures and furniture in said store, agrees that when full con trol of said business is transferred to R. M. Hamill as above contemplated, he will execute to said R. M. Hamill a lease of said store and fixtures and furniture used therein, at the rate of $50 per month, payable monthly in advance from month to month, and said lease may be terminated by either party upon giving 60 days’ notice to the other party. This lease shall include only the store-room, ware-room and cellar now used in the business, and free ingress and egress to and from the same over said lot. D. Hamill. R. M. Hamill.” At the time this contract was entered into, the firm'of Hamill Bros, was indebted to various creditors in the sum of $4,800, and they owed the Harvey County Bank a note of $5,000. R. M. Spivey was then, and for a long time before had been, the vice-president and active manager of the Harvey County Bank, and was in the full charge of its business. Some time after the contract of January, 1884, was made, R. M. Hamill went to Chicago to buy goods with which to replenish the stock. He carried with him a letter from Spivey, as follows: “HARVEY COUNTY BANK, (Successor to the Harvey County Savings Bank.) O. B. SOHMIDT, JULIUS SIMON, B. M. SPIVEY, President. Cashier. Vice-President. Newton, Kas., February 29, 1884. “To whom it may Concern: The bearer, R. M. Hamill, succeeds the firm of Hamill Bros., merchants of long standing in this city. Mr. R. M. Hamill is not indebted to this or any other bank, and with his long experience and general acquaintance in this country, believe he will do a good business, and with continued prosperity no doubt he will make prompt payment for any goods he may purchase. Respectfully, R. M. Spivey, Vice-President.” While R. M. Hamill was in Chicago, Spivey wrote the following letter to a wholesale firm there from which R. M. Hamill bought goods: “HARVEY COUNTY BANK. O. B. SOHMIDT, JULIUS SIMON, E. M. SBIYBT, President. Cashier. Vice-President. Newton, Kas., March 8,1884. “Kahn, Schoenbrun & Co., Chicago, III.: “Gentlemen — I had a telegram fromR. M. Hamill yesterday, stating that Harvey County Bank reports him as ow ing $8,000. The statement which we sent you regarding his financial standing was intended to be confidential, but it seems you have not made the information confidential, but informed him the contents. Under the circumstances, I do not care to confide in you further statements, but will add that Mr. R, M. Hamill does not owe this bank but'$200, and does not owe any bank, which I wired you last night. Yours, R. M. Spivey.” On the 1st day of March, 1884, D. Hamill wrote to Norton and Cahill, salesmen for two large wholesale houses, from whom R. M. Hamill bought goods, the following letter: “ MONARCH MILLS, D. Hamili., Proprietor. “Newton, Kas., March 1,1884. “Messrs. L. R. Norton and J. H. Cahill, Chicago, III. : “Gentlemen — Robert M. has just handed me your letter to him of the 27th ult. So far as the report is concerned to which you refer, I wish to say that there is not a word of truth in it. As a matter of fact Robert does not owe a dollar. So far as my own liabilities are concerned, they are a matter of record, and concern none but me personally, and I am fully able to take care of them. “Gentlemen, Robert could have bought his goods several times since arrangements were made with you, and was strongly urged to do so, but his preference has been to buy of you. I only ask that you sell him goods at the right hind of prices, so that he can meet competition. “ I wish also to say, gentlemen, that the First National Bank of this city and myself have been and are now on anything but friendly terms. This feeling was brought about from the fact that I did not patronize that bank, but did my business through the Harvey County Bank. The First National Bank has lost no opportunity to injure my business whenever they had the opportunity. So far I have been able to come out ahead in every encounter, and I think I can manage to take care of myself. I did not suppose that they would on that account endeavor to injure Robert’s credit. Yery respectfully, D. Hamill.” The Harvey County Bank loaned R. M. Hamill $200 with which to pay his expenses on the Chicago trip. He bought on this trip from John Y. Farwell & Co., Kahn, Schoenbrun & Co., and C. M. Henderson & Co., goods exceeding in value $18,000. He wrote to the wholesale houses on the 17th day of March that the goods had all arrived safely at Newton. While at Chicago he made a sworn statement of his financial condition to J. V. Earwell & Co., that reads as follows: “Chicago, III., March 4, 1884. “I, R. M. Hamill, of Newton, county of-, state of Kansas, for the purpose of obtaining a credit with John V. Earwell & Co., of Chicago, 111., for goods which - may now or hereafter purchase of them, do make the following statement and representations of-present true financial circumstances, wealth, and mercantile respectibility, which said representations shall be the basis of- credit with John V. Earwell & Co., both for - present purchase, and for all purchases for and during the period of five years from this date, agreeing to immediately notify them of any material change in or of- business matters during the the period above mentioned. “-a copartnership of-. “ASSETS. Amount. Stock of goods on hand at value......................... $12,555 00 Notes and accounts, good............................... -2,000 00 Notes and accounts, doubtful.................................... Notes and accounts, worthless................................... Cash on hand or in bank........................................ Other personal property........................................ Insurance (will increase)................................ 6,000 00 Real estate in my name at market value, storehouse....... 7,500 00 References............................................. ........ “liabilities. - Amount. Incumbrances on real estate............................. $2,500 00 Incumbrances on personal property............................. Nor merchandise, not to exceed.......................... 2,812 58 3?or borrowed money................................... None. Individual liabilities.................................... None. Nor confidential and all other liabilities.................. None. Amt. debts past due, included in merchandise indebtedness, None. (Signature) R. M. Hamill.” On the 18th day of February, the Harvey County Bank, by Spivey, made a commercial report on R. M. Hamill to the reporting agency of Bond & Weigley, that was furnished by them to Kahn, Schoenbrun & Co. It is as follows: “Name in full of eaoh member: Rob’t M. Hamill. Business: Dry goods, clothing, etc. Amount of capital in business............................$15,000 00 Amount borrowed capital............... 8,000 00 Value of real estate..................................... 3,000 00 Incumbrance........................................... 1,700 00 Value personal property................................. 500 00 Any chattel mtgs. or.................................... None. Other Hens.............................................. None. Value of stock.......................................... None. Married................................................ Yes. Character.............................................. Good. Attentive to business.................................... Yes. Prompt pay............................................ Pair. Insured.......................!........................ Yes. Credit largely........................................More or less. Prospect of success..................................... Pair. Ever failed or asked extensions.......................... None. Do you consider.....good for.....a credit of 1,000 dollars, Yes. “ BEMABKS. “ B. M. Hamill will, in a month or so, succeed to the business of Hamill Bros. If country continues prosperous he will succeed. “Yours, Habvey Co. Bank.” Ojq the 20th day of March, 1884, the following agreement was made in writing between E. M. Hamill, D. Hamill, and E. M. Spivey: “Newton, Kas., March 20, 1884. “ In consideration of D. Hamill releasing and assigning to E. M. Hamill all of his right, title and ownership in and to all of the goods (not including store furniture and fixtures) kept by Hamill Bros, and D. Hamill in their store upon lot 8, block 38, Newton, Kas., which he hereby does, we, the undersigned, E. M. Hamill and E. M. Spivey, agree and bind ourselves to pay and hold the said D. Hamill harmless of all the following debts now owing by the said Hamill Bros, to — E. L. McDonald.......................................... $94 00 Jno. Y. Parwell........................................... 1,600 00 C. M. Henderson......................................... 400 00 A. N. Shuster............................................ 650 00 J. W. Bailey & Co......................................... 200 00 Noyes, Norman & Co...................................... 144 00 H. M. Price.............................................. 250 00 Tootle, Hosea & Co....................................... 350 00 Beynoíds Bros............................................ 300 00 I. Weil, four notes in bank. “All debts of said firm to Harvey County Bank; all of which debts we assume; and E. M. Hamill agrees to pay any other debts of said old firm, should any be found not included in this agreement. Should D. Hamill be compelled to pay any debts in violation of this agreement, we agree to repay him all costs and expenses he may be put to on account thereof. “ Made in duplicate. E. M. Hahild, I). Hamill, E. M. Spivey.” On the same day E. M. Hamill executed a note for $10,000 to the Harvey County Bank, and a chattel mortgage to secure the same. The consideration of the mortgage is alleged to be the note of D. Elamill to the bank for $5,000, the debts of the firm guaranteed by Spivey, $4,800, and the $200 borrowed by E. M. Hamill from the bank, with which to pay the expenses of his Chicago trip. This mortgage was kept in the vaults of the bank and not recorded until the 3d day of May, 1884, and not until the Chicago creditors had appeared at Newton and demanded security for the payment of their claims. These are some of the material facts as they appear in the record. The jury returned answers to the following special interrogatories : “1. At the time John F. Wafer, as sheriff, took the stock of goods, how much was the Harvey County Bank entitled to hold the same as security for? Ans. $10,000. “2. What items of indebtedness made up the amount of the $10,000 note secured by chattel mortgage? State fully the amount of each. A. One note of $5,000; guaranteed claims to eastern creditors, $4,800; borrowed money, $200. “3. Was the stock of goods pledged to E. M. Spivey, and if so, for what? State specifically amount of each item. A. Pledge void. “4. Were the goods pledged to E. M. Spivey, among other things, for future advances to be made to E. M. Hamill for the support of himself and his family? A. Pledge void. “ 5. Did E. M. Hamill obtain the goods from the attaching creditors by false and fraudulent means ? A. Yes. “6. Did the Harvey County Bank, through its officers, know that E. M. Hamill had purchased the goods by false and fraudulent means at the time it took this $10,000 mortgage? A. No. “7. Did E. M. Spivey, by his letters of February 29,1884, and March 8, 1884, and his telegram of March 8, 1884, tend to and partially induce the attaching creditors to give E. M. Hamill credit and to sell him goods? A. Yes. “8. Did E. M. Spivey have knowledge, at the time he accepted the pledge, that E. M. Hamill had purchased the goods by false and fraudulent means? A. Pledge void; and if time above refers to the pledge of May 3, 1884, we say ‘Yes.’ “ 9. At the time E. M. Spivey wrote his letters of credit of February 29,1884, and his letters and telegrams of March 8, 1884, did he not know that Hamill Bros, were largely indebted to Harvey County Bank and eastern creditors? A. Not as a legal firm, as the evidence proves that the firm was in reality dissolved October 3, 1883. “ 10. At the time David Hamill wrote his letter of credit for R. M. Hamill, to Norton and Cahill, dated March i, 1884, did he know that Hamill Bros, were indebted to the Harvey County Bank and eastern creditors? A. Not as a legal firm, as the evidence proves that the firm was really dissolved October 3, 1883. “ 11. What persons composed the firm of Hamill Bros, during 1882,1883, and 1884?, A. D. Hamill and R. M. Hamill composed the firm of Hamill Bros, in 1882, and until the 3d of October, 1883.” I. It has been said that “every case must create its own law;” but this is one in which the fraud alleged is not purely a question of law, nor yet exclusively a question of fact, but the two are so closely interwoven, and so intimately blended together, that they both concur to produce the belief that a part of the truth was suppressed, and cunning artifice resorted to, and that both actual and constructive fraud was committed in the attempt to hinder and delay honest creditors receiving their just dues. These two important facts are established by the evidence and found by the jury: First, That R. M. Hamill procured the goods covered by the chattel mortgage to the bank from the attaching creditors by fraudulent misrepresentations; second, that R. M. Spivey, by his letters and telegrams, partially induced the attaching creditors to give R. M. Hamill credit and to sell him goods. There are some other important facts established by the evidence contained in this record. Spivey was the active and controlling officer of the Harvey County Bank, and he knew of the indebtedness of Hamill Bros, to the bank and to the other creditors. He had loaned R. M. Hamill the money to pay his expenses on the Chicago trip, and knew that Hamill went there to buy goods. A short time before this he had made a confidential report of the financial condition of R. M. Hamill to a mercantile agency in Chicago. He had every opportunity to know, and did know, the exact financial condition of Hamill Bros., of D. Hamill, and of R. M. Hamill. Again, as matters of law, the knowledge of Spivey as to the financial condition of the firm of Hamill Bros., and of the individual members of the firm, was the knowledge of the bank, whose managing officer he was. He knew as a matter of law that D. Hamill had an agreement with R. M. Hamill that he was to pay the outstanding debts of the firm, or that the goods on hand were pledged to their payment, and that R. M. Hamill, as a member of the firm, was still liable for their payment, notwithstanding his agreement in January with D. Hamill; and by reason of his knowledge the bank knew this. He knew that the creditors of the firm had never accepted the individual assumption of the debt of Hamill Bros., and that, at the time the credit was extended, had not released R. M. Hamill, and the bank had not done so. In a word, both Spivey and the Harvey County Bank knew all about the financial condition of the firm of Hamill Bros., and of the individual members composing it, at the time R. M. Hamill went to Chicago and procured these goods from the attaching creditors. All these things are apparent from this record. One of the questions arising on this state of facts is this: Can an antecedent creditor, who knows that his debtor has procured goods and merchandise by fraudulent means, take a chattel mortgage on goods thus procured, and acquire a lien adverse to the interest of the vendors? Another question is: Can an antecedent creditor of a debtor who procures goods fraudulently from wholesale merchants, who were partially induced to give such debtor credit on the strength of letters of the antecedent creditor, acquire by chattel mortgage a lien of the goods so procured adverse to the interests of the wholesale merchants? Another question is: Can one who knows that goods and merchandise are procured by fraudulent means acquire any interest in or lien on such.goods against the innocent vendors? II. The legal principle applicable to the first fact is, that these goods having been obtained from the attaching creditors by fraudulent means by R. M. Hamill, he acquired no title or right of possession in them, and the attaching creditors would be justified in retaking the goods; or they could waive the tort and bring an action to recover their value; or an action to recover damages for the deceit. (Story, Sales [4th ed.], § 172a; Newmark, Sales, § 360, note; Lyons v. Briggs, 14 R. I. 222; Savings Bank v. Barge Co., 52 Mich. 164; Cain v. Dickenson, 60 N. H. 371; Deickerhoff v. Brown, 21 Md. 583; Newell v. Randall, 32 Minn. 171; Fitzsimmons v. Joslin, 21 Vt. 129.) They elected, in this case, to waive the tort and bring an action to recover the value of the goods. The law applicable to the second fact is, that where the fraud consists in inducing, by false representation, a sale of goods to an insolvent third person, from whom the misrepresenting party afterward obtains them, the seller may bring suit for the price against the latter party as though he had bought the goods in his own name. (Biddle v. Levy, 1 Starkie, 20; Hill v. Perrott, 3 Taunt. 274; Phelan v. Crosby, 2 Gill, [Md.] 462; Thompson v. Davenport, 2 Smith, Lead. Cas. 407; Meyer v. Amidon, 23 Hun, 553; Benj., Sales [4th ed.], § 491; 2 Schouler, Pers. Prop. [2d ed.], § 672.) The particular act of Spivey that was evidently in the minds of the jury, that produced the special finding, was that his letter and telegram in which he asserted that R. M. Hamill did not owe the Harvey County Bank but $200, when in fact and in law he was indebted to the bank in a large sum, partially induced the sale of goods to Hamill by the Chicago merchants. This representation, known at the time it was made by Spivey to be untrue, is fraudulent. Chief Justice Marshall, in Russell v. Clark’s Ex’rs, 7 Cranch, 69, said: “ The ground of the action,” said the court in Boyd’s Ex’rs v. Browne, 6 Barr, 310, 316, “is the deceit practiced upon the injured party; and this may be either by the positive statement of a falsehood, or the suppression of material facts, which the inquiring party is entitled to know. Tire question always is, did the defendant knowingly falsify, or willfully suppress the truth, with the view of giving the third party a credit to which he was not entitled? It is not necessary that there should be collusion between the party falsely recommending, and him who is recommended; nor is it essential, in support of the action, that either of them intended to cheat and defraud the trusting party at the time. It is enough if such has been the effect of the falsehood relied on.” In the case of Allen v. Addington, 7 Wend. 10, reviewed in the court of errors, 11 Wend. 375, the letter of the defendant was written to a third person, and nevér shown to the plaintiff, but the plaintiff gave credit in consequence of what the third person was induced by the letter to say. The design of the defendant was to have the goods sold to the party recommended, from which he, as a creditor, might satisfy his own debt; and the fraud was held to consist mainly in the suppression of the fact that he held judgments against the person recommended,' which the latter was unable to satisfy. The court says it was a case of outrageous fraud and conspiracy. This is an exhaustive and elaborate case. In the case of Patten v. Gurney, 17 Mass. 182, the action was brought by the plaintiffs against the defendants for fraudulently affirming anothér to be trustworthy, in order that they might levy on the goods with which he was trusted, in satisfaction of debts owing by him to themselves. Parker, C. J., says: “A false and fraudulent affirmation, relative to the credit and ability of a person, to a merchant, who is thereby induced to trust such person with goods, is a sufficient ground for action, although there may have been no dishonest purpose of appropriating the goods to the use of the party making the recommendation, or in any way deriving a benefit from the fraud.” See other cases cited in the American notes to the case of Palsey v. Freeman, 2 Smith, Lead. Cas. (6th ed.), 166. III. Spivey knew that the goods had been procured from the wholesale merchants at Chicago by fraudulent representations. He knew that, at the time R. M. Hamill went to Chicago to buy the goods, Hamill had no money, because Spivey loaned him the money necessary to the expenses of the trip. He knew that, under the agreement between R. M. and D. Hamill, the stock on hand was pledged to the payment of the then outstanding indebtedness of the firm. He knew that the store-room and fixtures were the individual property of D. Hamill. He knew that the firm of Hamill Bros, was indebted to the Harvey County Bank in a sum in excess of $5,000. He knew that, since the agreement in January, R. M. Hamill had contracted debts for which he alone was responsible under that agreement, and which the firm was responsible for, unless the merchants from whom the goods were bought had knowledge of that agreement. The knowledge of all these facts, many of them fastened by his own admissions upon the witness stand, leads to the inevitable conclusion that he must have known that the goods were obtained fraudulently, and that the fraud was aided and abetted by Spivey’s suppression of all these facts. A failure to disclose a material fact is equivalent to active misrepresentation, for the withholding of that which is suppressed may make that which is stated absolutely false. (Devoe v. Brandt, 53 N. Y. 462; Brown v. Montgomery, 20 id. 287; Hanson v. Edgerly, 29 N. H. 343; Armstrong v. Huffstutler, 19 Ala. 51; Stephens v. Orman, 14 Fla. 21; Marsh v. Webber, 13 Minn. 109; Pease v. McClelland, 2 Bond [U. S.], 42.) The protection of a bona fide purchaser from a fraudulent vendee is almost universally recognized by the courts of this country, on the ground that the fraudulent purchaser has a voidable or defeasible title which, before its annulment by the vendor, the defrauding purchaser can transmit to a bona fide purchaser who is without knowledge or notice of the fraud, and because he has parted with value. One who buys with notice or knowledge of the fraud of his vendor in obtaining the property is not a bona fide purchaser, and is liaable not only to lose the goods, but, if he sells, to pay their value. (Stearns v. Gage, 79 N. Y. 102; Rateau v. Bernard, 3 Blatchf. 244.) To constitute good faith there must be an absence not alone of participation in the fraud or collusion with the vendee, but also of knowledge or even notice of the fraud, or of facts and circumstances calculated to put an ordinarily prudent business man on inquiry so that he would ascertain the truth. (Grant, Fraud. Vend. 568; Lynch v. Beecher, 38 Conn. 490; Allison v. Matthieu, 3 Johns. 235; Stearns v. Gage, 79 N. Y. 102; Dows v. Kidder, 84 id. 121; Cochran v. Stewart, 21 Minn. 435.) And it has been frequently held that the burden of proof to show good faith and purchase for value, as against the defrauded seller, is upon the party claiming to be a bona fide purchaser. (Devoe v. Brandt, 53 N. Y. 462; McLeod v. National Bank, 42 Miss. 99; Lynch v. Beecher, 38 Conn. 490; Schouler, Pers. Prop., 2d ed., § 609; Jones v. Franks, 33 Kas. 497; Wygal v. Bigelow, 42 id. 477.) Fraudulent intent is shown by turning the property over to another creditor very soon after it has been received. (1 Benj. Sales, p. 577, § 656, note 18; Wiggin v. Day, 9 Gray, 97; Jordan v. Osgood, 109 Mass. 462; Parker v. Byrnes, 1 Low. 539; Davis v. Mc Whirter, 8 Up. Can. Q. B. 598; 2 Kent, Comm. 484.) A sale is void where a creditor pays a debtor a surplus in purchasing his stock of goods with knowledge of fraud of vendor. (Davis v. McCarthy, 40 Kas. 18.) Where a merchant makes a sale to defraud his creditors, the purchaser is only protected as to the extent of the payments made in good faith without notice. (Bush v. Collins, 35 Kas. 535; Burke v. Johnson, 37 id. 337; Moxley v. Haskin, 39 id. 654; Green v. Green, 41 id. 474.) The intent to defraud is shown by acts and declarations. If a party is guilty of an act which defrauds another, his declaration that his intentions were honest cannot be taken as sufficient to overthrow the act. (Babcock v. Eckler, 24 N. Y. 623.) Where the fraud as to the creditors is participated in by both parties thereto, a chattel mortgage is void in toto. (Winstead v. Hulme, 32 Kas. 568; Wallach v. Wylie, 28 id. 138; Marbourg v. Mfg. Co., 32 id. 636; Hughes v. Shull, 33 id. 127; Bush v. Bush, 33 id. 567; Miller v. Krueger, 36 id. 345.) IV. The chattel mortgage executed by R. M. Hamill to the Harvey County Bank on the 20th day of March was not placed on record until the 3d day of May, and not then until after conversations had by an agent of the attaching creditors with both Hamill. and Spivey, in which conversations the existence of the chattel mortgage was not disclosed by either of them, and this was done in pursuance of an agreement made between them, and this agreement was made at a time when an agent of, the attaching creditors was there urging payment or security by R. M. Hamill. The fact that the chattel mort.gage was not recorded until the 3d day of May, and that there was an agreement by Spivey and R. M. Hamill not to disclose its existence to other creditors, taken in connection with all the other facts and circumstances disclosed by this record, is to be regarded as tending very strongly to show the fraudulent intent of these parties. (National Bank v. Jaffray, 41 Kas. 691;) "V. The court charged the jury in effect that the knowledge of Spivey was the knowledge of the bank, but the jury in their sixth special finding either did not understand or deliberately evaded such instruction. They find that the Harvey County Bank, through its officers, did not know that R. M. Hamill had purchased the goods by false and fraudulent means at the time it took this $10,000 mortgage. It was known to Spivey, and he was the active manager of the bank, and had been for some years prior to this time. If the jury meant that Spivey had no knowledge, there is not a particle of evidence to sustain this finding, as we view the facts. If they overlooked or gave no meaning to the words as used in the instructions of the trial judge, “If the bank, through its officers, knew,” and supposed that the bank itself, as distinguished from its officers, did not know, then they misapplied the law. The other two findings, already largely discussed, are inconsistent with and antagonistic to the general verdict. In the 4th special finding the jury evaded an answer to a question of fact, and gave a legal conclusion. In the 9 th and 10th special findings the evasion of the jury to a plain question of fact is self-evident. At the time the verdict was returned into court the plaintiffs in error demanded that the jury be required to answer interrogatories Nos. 4, 9 and 10 more fully and specifically, which demand was refused by the court, and the jury was discharged. We think this was error. We are satisfied that justice has not been done; that material error was committed in the trial; and that strong evidences of fraud and fraudulent intent are abundant in the record, and hence recommend that the judgment be reversed, and a new trial ordered. By the Court: It is so ordered. All the Justices concurring.	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Opinion by Strang, C.: Emma J. Tyler commenced this action before a justice of the peace in McPherson county to recover $135 and interest thereon, for rent alleged to be due her from the defendants below. The case was tried before a justice, resulting in a judgment for the plaintiff in the sum of $136.57. From this judgment the defendants therein appealed to the district court, where they filed an answer to the plaintiff’s bill of particulars. A demurrer was interposed to such answer, and by the court sustained. Afterward the defendants filed an amended answer, to which the plaintiff below again demurred. This second demurrer was also sustained. To the ruling of the court sustaining this demurrer the defendants below objected and saved an exception, and the case comes here for review of the ruling on said demurrer. The amended answer filed in the court below reads as follows: “Defendants say that they deny that they are indebted to the plaintiff in the amount sued for, or in any other sum of money whatsoever, for the following reasons: Prior to August 1, 1888, the date when the installment of rent herein sued for is alleged to have fallen due, defendants fully and completely abandoned and vacated the premises described in the plaintiff's bill of particulars, and released all claims of possession or right to them, and plaintiff resumed possession and control of said premises, leased them to various and divers parties, collecting and retaining the rent for the same in all respects the same as she did before the date of the alleged lease to the defendants, and has at all times since assumed and retained full and complete control of, the premises; and defendants allege that, by reason of the vacation of the premises by them, and reoccupying and control of them by the plaintiff, a cancellation of said lease was then and there perfected by operation of law.'' While this answer is not well drawn, yet we think it states a cause of defense at least to some part of the plaintiff's claim, and should have been held good as against a demurrer. It is therefore recommended that the judgment of the court below be reversed, and the cause remanded for further proceedings. By the Court: It is so ordered. All the Justices concurring.	[ -112, -18, -88, 45, -22, -32, 32, -104, 67, -127, -73, 87, -87, -62, 0, 121, -12, 73, 117, 105, 67, 39, 5, 99, -14, -109, 1, 85, -80, 76, -26, -41, 72, 48, -62, 93, 70, -126, -11, 92, -114, -123, -88, -59, -23, -118, 48, 107, 0, 10, 113, -115, -13, 40, 17, 67, 73, 45, -5, 57, -32, -16, -110, 5, 95, 7, -111, 55, -100, -61, -56, -88, -112, 57, 0, -24, 115, -74, -122, 84, 7, -103, 12, 38, 98, 32, -91, -17, -68, -100, 46, -74, -99, -90, -48, 88, 11, 8, -76, -99, 116, 84, -121, 124, -26, -123, 28, 108, 7, -33, -44, -69, 13, 52, -102, -125, -9, -109, 49, 113, -51, -96, 92, 71, 56, -69, -113, -6 ]
Opinion by Simpson, C.: The plaintiff in error, with many others who are not here complaining, commenced an action in the district court of Leavenworth county, on the 9th day of August, 1887, to restrain the collection of an assessment upon their lots for paving with cedar blocks the street upon which the lots fronted. A special ordinance was passed by the city on the 23d day of July, 1887, determining the specific amount of special tax levied upon each lot or half-lot in each block fronting on said street. At the April term, 1888, the district court of Leavenworth county refused to restrain the collection of the special tax, and the case is here for review. At the conclusion of the trial in the district court, time was given for the plaintiff in error to make a case for this court; but this was not done, and the order allowing it was subsequently vacated, at the request of the plaintiff in error. He brings here a certified copy of his petition, with exhibits, the answer of the defendant city, a motion for judgment on the pleadings and the order overruling it, with some other matters, and a copy of the final judgment; and these are certified to by the clerk as being true copies of the originals on file in his office. There is nothing then before this court but a certified copy of the pleadings and judgment. There is no case-made, no bill of exceptions, no evidence. There is a motion for a judgment for the plaintiff in error on the pleadings, and an adverse ruling thereon, and there are.a number of propositions that by inference were propounded to the trial court for answer, but as the evidence is not here we do not know whether any or all of them would be material as special findings of fact or conclusions of law. The motion for judgment on the pleadings was properly overruled, because there was a verified answer on file at the time the motion was made. There is one question that might arise on the pleadings and judgment; that is, are the allegations of the petition sufficient to sustain the judgment? But as the judgment in this case was against the plaintiff below and the plaintiff in error here, that question is not presented. In a word, this record is in such condition that we have no power to determine the very many questions suggested by the briefs of counsel, whose friendly efforts ought to have been aided by a more complete transcript of the proceedings had in the trial court. We recommend an affirmance of the judgment. By the Court: It is so ordered. All the Justices concurring.	[ -16, -18, -8, 110, -118, -32, 40, -120, 73, -79, -89, 127, -19, -54, 20, 125, -90, 61, 85, 106, 67, -73, 7, 67, -78, -77, -61, -43, -78, -51, -12, -43, 76, -80, -54, -67, 70, -62, -123, -36, -50, -113, -119, -60, -39, 96, 52, 105, 98, 11, 113, 76, -9, 42, 28, -61, 105, 45, -51, 59, -31, -79, -68, -51, 127, 7, -127, 22, -100, 67, -54, -86, -112, 53, -128, -24, 115, -90, -122, 117, 5, -69, 40, 102, 102, 33, 45, -17, -72, -104, 14, -3, -115, -91, -78, 88, 107, 15, -106, -99, 117, 82, 6, -2, -20, 5, 29, 124, 7, -50, -80, -77, -49, -72, -128, 3, -1, -125, 48, 113, -49, -98, 92, 102, 50, -101, -98, -8 ]
The opinion of the court was delivered by Smith, J.: The appellee, Mrs. Tuttle, owned a tract of cultivated land which she leased to L. M. Ballard. After sowing a portion of the tract to wheat Ballard, it seems, was unable to meet a payment of the cash rent, and by agreement with Mrs. Tuttle surrendered the lease. Thereafter she rented the farm to two men, Hasty and Hill, but reserved the wheat crop. On November 12, 1910, appellant Bell brought suit in the justice court against R. Z. Ballard, a son of L. M. Ballard, claiming that R. Z. Ballard had sown the wheat and had an interest therein, and caused an attachment to be levied on the wheat as the property of R. Z. Ballard or on his supposed interest therein. The attachment, it seems, was levied by the sheriff of the county, who was succeeded in January following by appellant Lingenfelter, prior to the expiration of his term of office. Bell obtained judgment against R. Z. Ballard for $170.65 debt and $48.50 costs and an order sustaining the attachment. R. Z. Ballard did not appear, and thereafter Mrs. Tuttle filed an interplea in the action, claiming that the 180 acres of growing wheat belonged entirely to her, and asked that the attachment be released. A hearing was had thereon before the justice on April 13, 1911, and on the 15th the justice made an order discharging the 130 acres of wheat from the attachment. Bell filed a bond to appeal from this order, which was approved, and the case was certified to the district court. The appeal came on for hearing in the district court in the fall of 1911 and the court dismissed the appeal on the ground that the matter was not appealable and the court had no jurisdiction to consider the matter. Thereafter this action was brought by Mrs. Tuttle against Tom K. Bell, D. E. Holliday and John Lingenfelter to recover treble damages for the alleged value of the wheat. In her petition the appellee alleged that she was the owner and in the possession of the land upon which the 130 acres of wheat was grown, and of the wheat sown thereon in the fall of 1910 and harvested and threshed therefrom in the year 1911; that the defendants unlawfully and without right cut down and carried away the wheat and converted it to their own use and deprived the plaintiff thereof; that the wheat was worth $1563, with six per cent interest from July 10, 1911, until paid; that by reason of the unlawful seizure thereof she was entitled to treble damages, and prayed judgment for $4608. Defendant Holliday made no appearance and no judgment for or against him was rendered. Bell and Lingenfelter answered separately, by general denial, and alleged the ownership of the wheat by Ballard and the judgment against Ballard. The sheriff also alleged that he had procured the wheat to be harvested, threshed and sold on the market for .the best price obtainable therefor; that the wheat brought $948.61, and that he paid for harvesting, threshing and marketing $311.95 and had in his hands the remaining sum of $636.95; that he did not claim and never had claimed any interest in or title to the money or any part of it; that he assumed the task of harvesting, threshing, and selling the wheat at the request of the parties, and asked the court to make such order as might be proper directing what disposition he should make of the money remaining in his hands, but asked the court to render no judgment against him for costs. The appellee replied to these answers by general denial, and further alleged the order of the justice of the peace discharging the attachment therein in the action of Bell against Ballard, and other facts which in view of the verdict and judgment need not be recited. On these pleadings the case was tried. The appellee produced evidence that prior to the attachment she had bought the interest of Ballard in the wheat and was the owner of the land at the time the attachment in Bell v. Ballard was levied. She then nailed J. M. Lingenfelter as a witness, who testified that he had no writ of attachment under which he proceeded, but that he harvested, threshed and marketed the wheat on the request of Mr. Ready and Mr. Schwinn, who authorized him so to do; that Mr. Ready was representing Mrs. Tuttle in the matter; also, that Mrs. Tuttle afterwards talked to Lingenfelter about selling the wheat; that she told him she wanted it sold at Belle Plaine, and he explained to her that it would cost more to haul it to that place than to Peck; that he sold it to Bell at Peck; that she said she did not want Bell to weigh the wheat; that he told her to name her man, and she named Mr. Lane and Lane weighed the wheat. Lane testified there were 1216 bushels according to the scale weight. As we understand, all this transpired before the district court dismissed the attempted appeal from the justice’s court. The evidence in regard to the ownership of the wheat, without controversy, sustains the appellee’s contention as to her ownership thereof, and equally, without controversy, it sustains the claim of Sheriff Lingenfelter as to his authority for harvesting, threshing and marketing it. As to appellant Bell, he was litigating in a lawful manner his right to have the wheat, or at least a part of it which he claimed belonged to Ballard, sold and applied to the payment of his claim against Ballard. The appellants requested the court to give the jury instruction No. 2, which reads: “2. If you believe that the plaintiff, by herself or by her attorney, agreed that the defendant, J. M. Lingenfelter, should harvest, thresh and sell the crop of wheat in controversy in this action, and pay the expenses of the same from the proceeds of the wheat sold, and hold the balance of the money until it shall be. determined who was entitled to the same, then the plaintiff could, at most, only recover the money remaining in the hands of the said Lingenfelter after the payment of the expenses.” The refusal of this instruction was error. Under the undisputed evidence, given in the presence of the attorneys who were said to have made the agreement, the refusal of this request was error. The appellee recognized the act of her attorney, Ready, in authorizing Lingenfelter to harvest and market the wheat, and discussed with Lingenfelter where the wheat should be sold and selected a man to weigh it, and this was in Ready’s office and, so far as appears, in Ready’s presence. There is no evidence that Lingen'felter incurred any unnecessary expense or any greater expense than the appellee would necessarily have incurred in harvesting, threshing and marketing the wheat, or that he did not receive the full market price therefor and correctly report the same to the appellee. The undisputed evidence in this case shows that the appellant, Bell, was contesting by advice of counsel his right to attach an alleged one-third interest in the wheat as the property of Ballard, and that while such litigation was pending it became necessary to harvest the wheat and that attorneys representing Bell and Mrs. Tuttle authorized and requested appellant Lingenfelter to harvest, thresh and market the wheat, and that Mrs. Tuttle recognized the authority to Lingenfelter by discussing the sale of the wheat and appointing a man to weigh it who did weigh it. This action was not brought to recover damages for a wrongful attachment, but to recover treble damages for the cutting and removal of the wheat and costs. To recover treble damages in such case it is essential that the trespass be committed without color of authority. (Fitzpatrick v. Gebhart, 7 Kan. 85.) Lingenfelter in harvesting, threshing and marketing the wheat was not acting without authority from Mrs. Tuttle. It is therefore ordered that the judgment be modified and reduced to the net amount receiyed for the wheat, and for the costs of the action. The judgment as modified is affirmed.	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Opinion by Green, C.: The Farmers’ and Drovers’ Bank sued the plaintiffs in error in the district court of Kingman county, upon a promissory note for $1,776.50. S. G. Babcock answered, admitting the execution of the note, and set up tbe affirmative defense that the note was void for want of consideration; that he had, at different times and in different sums, borrowed money from the Farmers’ and Drovers’ Bank, and had agreed to pay usurious interest for the use of the money so borrowed ; that the whole sum of such usurious interest agreed to be paid by him amounted to the sum stated in the note sued on; and that this note was executed for the usurious interest over and. above the legal rate of interest on the various sums loaned to him. This answer was verified, and before the trial the district court made an order permitting the defendants below Alexander and Culver to adopt the pleading filed by Babcock as their answer. No reply was filed by the plaintiff below to this answer. The defendants asked for judgment upon the pleadings, which was overruled, and the court ordered the case to be tried, without a reply to the answer, over the objection of the defendants; a jury was impaneled and sworn, and the plaintiff introduced its note in evidence, which was objected to. The defendants then offered in evidence the verified answer filed by Babcock, which was objected to, and the trial court sustained the objection. No other evidence was offered. The court instructed the jury to return a verdict for the plaintiff for the amount due on the note sued on. A verdict was returned for the'sum of $1,952.37, and a judgment was rendered for that amount, in favor of the plaintiff below. The plaintiffs in error bring the case to this court. It is first claimed that the answer of the defendants below contained such material allegations of new matter or affirmative defense as required a reply from the plaintiff to put the same in issue, andj having failed to reply, it admitted the same to be true, and that the defendants’ motion for judgment on the pleadings should have been sustained. The reply was not waived, and we think it was error for the trial court to proceed without requiring a reply to the new matter set up in the answer. Section 128 of the civil code provides that every material allegation of new matter in the answer not controverted by the reply shall, for the purposes of the action, be taken as true. The defense set up was that the entire consideration of the note was usurious, which, if true, was a complete defense to the note set out in the petition. We think a reply was • necessary, and, none having been filed, we are of the opinion that the plaintiffs in error should have had judgment upon the pleadings. (Scott v. Morning, 18 Kas. 489.) It is unnecessary for us to notice the other errors. We recommend a reversal of the judgment, and that a new trial be granted. By the Court: It is so ordered.' All the Justices concurring.	[ 114, 108, -96, -33, -118, 32, -86, -102, 73, -95, -13, 87, -7, -53, 20, 101, 102, 41, 117, 104, -42, -73, 15, -64, -14, -77, -29, -43, -79, 109, -28, -43, 77, 48, -54, 85, 7, -32, -59, -36, -50, 4, -87, 100, -7, 74, 48, 127, 18, 73, 113, -51, -13, 47, 62, 99, 109, 46, 79, 63, -63, -15, -98, 5, 125, 7, -112, 98, -104, 0, -54, 46, -112, 53, 3, -24, 114, 54, -122, 116, 41, -101, 12, 102, 98, -127, 52, -17, 25, -104, 38, -2, -113, -90, -112, 72, 43, 11, -74, -99, 126, 84, 6, -18, 125, 13, 25, 108, 7, -50, -110, -77, -81, 62, -104, -117, -29, -125, 20, 115, -51, -30, 92, 71, 49, -101, -114, -79 ]
The opinion of the court was delivered by Horton, C. J.: The principal question in this case is, what effect is to be given to the following language of the receipt executed by the express company: “It is hereby expressly agreed that the said Pacific Express Company is not to be held liable for any loss or damage, except as forwarders only; nor for any loss or damage of any box, package or thing for over $50, unless the just and true value thereof is herein stated.” It appears that the type and electrotype plates were shipped from Kansas City to Lawrence by the A. N. Kellogg News paper Company, which in making the shipment acted for Peter T. Foley. It also appears that the newspaper company had a receipt-book, furnished by the express company, and in the heading to each page were printed conditions, and among others, the one quoted. The newspaper company, having this book in its possession and control, and using it from day to day, must be presumed to have known of its conditions, and to have shipped with reference to it. In this the company acted for the plaintiff, and he must be presumed to have assented to the terms and conditions of the receipt. The jury made the following special findings in answer to questions submitted to them: “ Ques. Was not the box containing the type and electrotypes in controversy broken while it was still in the ear in which it was brought from Kansas City? Ans. It was found broken in the ear. “ Q,. If you should find that said box was broken open by any negligence of the company, state what act or thing caused said box to be broken. A. We do not know. “Q,. Do the jury know where on the journey the box was broken open? If so, state where. A. We do not know. “Q,. Were not the agents of defendant negligent in taking the box out of the car? A. Yes. “Q. Could they not have saved the contents of the box by handling the box carefully when it was taken out of the car ? A. Yes, to the best of our knowledge and belief.” The district court, among other things, instructed the jury that— “ While a common carrier is generally, in the absence of any such limitation, liable absolutely as an insurer against all loss except that caused by the act of God and the public enemy, it may limit such liability by special conditions such as contained in this receipt, but such special contract cannot relieve the company from its own negligence. It follows that in this case the company is liable, if at all, not as an insurer, but solely for negligence in the transportation of the property. Negligence is a negative term, implying the want or absence of ordinary care — that is, that care and caution that men of ordinary prudence usually exercise under like circumstances. Whether the defendant company was so negligent, and, if so, whether such negligence caused the injuries complained of, are questions of fact for the jury, to be determined from all the evidence. You should consider the condition of the material when delivered to them, the manner in which it was boxed, the nature of the articles so far as they could be seen and known by the shipper, the manner in which such property is handled, the condition and circumstances in which it was found at the place of destination, and taking into consideration all the surrounding circumstances and facts proven, and using that ordinary knowledge, observation and experience in life that men generally possess, you must say whether the loss and injury were attributable to the want of ordinary care and diligence on the part of the express company. If they were, the plaintiff may recover his actual loss; otherwise, he cannot recover beyond the sum of $50.” The express company asked the court to instruct the jury as follows: “ 1. The jury are instructed to return a verdict in favor of the plaintiff for the sum of $50. “2. The agreement in the receipt that defendant will not be liable for more than $50 for any shipment, unless the true value of such shipment is stated in the receipt, is a valid agreement and relieves the defendant of liability as insurer for all amounts over $50, leaving it liable in excess of $50 only for gross negligence, and the burden of proving gross negligence is upon the plaintiff.” I. It is settled by the decisions of this court, and by the great weight of authority, that a common carrier cannot stipulate for exemption from responsibility for the negligence of himself or his servants on grounds of public policy even by express contract. (K. C. St. J. & C. B. Rld. Co. v. Simpson, 30 Kas. 645; Railroad Co. v. Lockwood, 17 Wall. 357, and the cases therein cited; 2 Am. & Eng. Encyc. of Law, 822.) But this is not the question presented by the record in this case. The receipt executed by the express company, and knowingly and voluntarily accepted by the shipper through his agent, expressly provided “that the express company was not to be liable for any loss or damage to the box for over $50, if the just and true value thereof was not stated.” The true and just value of the box was not stated in the receipt or to the company by the shipper. The trial court very-proper ly instructed the jury, “that the shipper must be presumed to have assented to the terms and conditions of the receipt.” Two questions are therefore presented for our determination: First. May a common carrier limit his liability to an amount stated in a written receipt or special contract in the event of loss or injury to the goods or property through ordinary negligence, if such special contract is freely, voluntarily and fairly entered into by the parties, and such contract is just and reasonable in its terms? Second. Did the written receipt or special contract between the shipper and express company in this case limit the liability of the company for loss or injury to the amount of $50? The better authorities declare the law to be, that the value of the property transported may be agreed upon, and the damage or loss to the property occasioned by the negligence of the company or its servants will be °. ° 1 J limited to the agreed valuation. The Hart Case, 112 U. S. 331, may now be called the leading case in America. Mr, Justice Blatchford, delivering the opinion of the court in that case, said, among other things, that— “ It is the law of this court, that a common carrier may by special contract limit his common-law liability, but that he cannot stipulate for exemption from the consequences of his own negligence or that of his servants. . . . There is no justice in allowing the shipper to be paid a large value for an article which he has induced the carrier to take at a low rate of freight, on the assertion and agreement that its value is a less sum than that claimed after a loss. It is just to hold the shipper to his agreement, fairly made, as to value, even where the loss or injury has occurred through the negligence of the carrier. . . . The limitation as to value has no tendency to exempt from liability for negligence. It does not induce want of care. It exacts from the carrier the measure of care due to the value agreed on. The carrier is bound to respond in that value for riegligence. The compensation for carriage is based upon that value. The shipper is estopped from saying that the value is greater. The articles have no greater value, for the purpose of the contract of transporta tion, between the parties to that contract. The carrier must respond for negligence up to that value. It is just and reasonable that such a contract, fairly entered into, and where there is no deceit practised on the shipper, should be upheld. There is no violation of public policy. On the contrary, it would be unjust and unreasonable, and would be repugnant to the soundest principles of fair-dealing and of the freedom of contracting, and thus in conflict with public policy, if a shipper should be allowed to reap the benefit of the contract if there is no loss, and to repudiate it in case of loss.” See, also, Harvey v. Railroad Co., 74 Mo. 539; Brehme v. Dinsmore, 25 Md. 329; Railroad Co. v. Sherrod, 84 Ala. 178; Duntley v. B. & M. Rld. Co. (N. H. 1890), 9 Lawyers’ Rep. 449; Magnin v. Dinsmore, 62 N. Y. 35; 20 Am. Rep. 442; Squire v. N. Y. C. Rld. Co., 98 Mass. 239-245; Graves v. L. S. & M. S. Rld. Co., 137 id. 33; Hill v. B. H. T. & W. Rld. Co., 144 id. 284; Falkenau v. Fargo, 3 Jones & S. 332; 55 N. Y. 642; Ghormley v. Dinsmore, 21 Jones & S. 36; Westcott v. Fargo, 6 Lans. 328; Grace v. Adams, 100 Mass. 505; Pemberton Co. v. N. Y. C. Rld. Co., 104 id. 144. See, also, Breese v. U. S. Telegraph Co., 48 N. Y. 132, 139, 141, 142; 23 Am. & Eng. Rld. Cases, 703; 42 id. 366 (Va. 1879). II. As to the second question proposed, we think that the limitation in the written receipt or special contract not to be liable for any loss or damage over $50, in this case, stands as if the carrier had asked the value of the box and its contents, and had been told by the shipper “that the value was $50 only,” or, which is the same thing, had been told by the shipper “ that if loss or damage occurred to the box or its contents, he would not demand over $50.” In Kallman v. Express Co., 3 Kas. 205, it was said that— “No value was given in the bill of lading which was delivered to the shipper by the express company, and received by him without objection, thus consenting and agreeing that the plaintiffs should be bound by its terms. If he had desired to make the company responsible for the full value of the goods, he had only to furnish them with the amount and have it inserted in the bill. But if may be said that the company were bound to make inquiry as to the value of the goods if they desired to obtain the benefit of this limitation upon their liability. We confess that we are not able to see any good reason for making such a requirement a condition precedent in such case. The company exhibits to the employer the exact condition upon which they will receive his property for carriage, to which he may assent or not, as he may choose. If he assent, we think he should be bound thereby. As in this case, if the real value of the property was $592.53, the employer, in case of loss, would be as much, nay more, interested in having such value truly stated in the bill of lading or receipt as the company could possibly be in having the value understated. He ought, then, to have made known to the company the true value of the goods, and more especially, as the limitation upon the liability of the company was so plainly stated in the receipt.” We do not quote this part of the opinion in the above case because it is necessarily conclusive or binding as a prior decision of this court, as, in that case, the trial court granted a new trial. This court affirmed the action of the court below. Much said in the former opinion, outside of affirmjng the action of the court in granting a new trial, we consider obiter dictum. The trial court in that case, in granting the new trial, did not pass upon a pure, simple and unmixed question of law. This court has decided time and again that— “The granting of a new trial is largely in the discretion of the trial court; and where a new trial is given, and the record does not show upon what grounds the court granted such new trial, but the record does show errors upon which the trial court might have granted a new trial, the order granting such trial will not be disturbed.” (Barney v. Dudley, 40 Kas. 247; Sowell v. Pugh, 25 id. 96; City of Sedan v. Church, 29 id. 190.) See Betz v. Land Co., ante, p. 45. “It is a maxim not to be disregarded, that general expressions in every opinion are not to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision. The reason of this maxim is obvious.” (Cohens v. Virginia, 6 Wheat. 264-399, 400.) But we have referred to that part of the Kallman opinion, because the court below charged the jury “that the Kellogg Newspaper Company, having this receipt-book in its possession and control, and using it from day to day, must be presumed to have known of such conditions, and to have shipped with reference to it. In this it acted for the plaintiff, and he must be presumed to have assented to the terms and conditions of the receipt; ” and because this part of the charge of the trial court and the part of the opinion quoted from the Kallman case are in accordance with reason, fairness, and justice. This part of the opinion also answers the objection “that the value of the property transported was not agreed upon.” ' As is forcibly argued by counsel — “The express company took the property and signed a receipt presented to it by plaintiff’s agent. It is true that it was one of a book of receipts furnished by the express company, but the receipts were all in blank, the printed part containing all the regulations that the express company required the shipper to comply with. The blanks were all left for the shipper to fill in any way he pleased; and in whatever way he filled the blanks, the express company was bound to receipt for the property covered by the receipt. When the shipper had filled the blank and presented it to the express company for its signature, he was in the attitude of proposing an agreement to the express company for acceptance. The signature of the express company was the completion of the agreement, and the agreement as completed, so far as it related to the value of the property, was not a limitation of liability for negligence in any way, but a square agreement that the property presented for carriage, and covered by the receipt, was worth only $50.” In Oppenheimer v. Express Co., 69 Ill. 62, the facts were about as follows: May' & Stern shipped by the United States Express Company a box weighing 25 pounds, from New York city to Oppenheimer & Company, at Chicago, Ill. It contained jewelry of the value of $3,800. The receipt given by the express company was similar in that case to the receipt given by the Pacific Express Company in this case. The blank for the value of the box and contents was not filled in. But the limitation of $50 was in the receipt in that case, as in this. The box and its contents were destroyed by fire in the office of the express company at Chicago. Oppenheimer & Go. brought an action to recover for the value of the contents of the box. Judgment was rendered in their favor for $50 only. They appealed. The judgment of the lower court was affirmed by the supreme court of Illinois. In rendering its opinion, that court said: “The terms and conditions on which the company received the property for transportation were clearly expressed in the body of the receipt, and in a way not calculated to escape attention. It must be supposed that these men paid some attention to the transaction of their business, and were reasonably well informed in regard to the nature of their contracts. That they should have been so doing business with this company for years, handling, filling out and procuring the execution of these shipping receipts, without a knowledge of their general character and effect, it is difficult to believe. They must be held to have had such knowledge. ... A distinction exists between the effect of those notices by a carrier which séek to discharge him from duties which the law has annexed to his employment, and those, like the one in question, designed simply to insure good faith and fair dealing on the part of his employer — in the former case, notice alone not being effectual without an assent to the attempted restriction; while in the latter case notice alone, if brought home to the knowledge of the owner of the property delivered for carriage, will be sufficient.” A part of the syllabus of that case reads: “An express company has the right to demand from a consignor such information as will enable it to decide on the proper compensation to charge for the risk, and the degree of care to bestow in discharging its trust; and a limitation of its liability not to exceed $50, unless the value of the goods forwarded is truly stated, if brought to the knowledge of the consignor, is reasonable and consistent with public policy.” The court finally disposed of the above case upon the ground that there was a “designed suppression of the value of the goods.” It was said in the opinion, among other things, that— “There was an actual attempt here by the agent of the shippers to fill in this blank space, but instead of inserting $3,800 (the value), a mark or character was inserted inexpressive of any value. This shows that there was a designed-suppression of the value of the goods. That was unfair conduct on the part of the shipper of the goods. The effect of such conduct to relieve the carrier from his liability as insurer, is asserted in many cases [here decisions are given]. Had the true value of the goods been disclosed, there would have been an extra charge of $9.50, increased precautions would have been taken for the safety of the goods, and, as the evidence shows, they would have been saved.” It may be said in every case that where a shipper fixes an agreed valuation upon his goods to be transported, or enters into a special contract with the carrier that if his goods are lost or injured he will not demand over $50, and thereby obtains cheaper rates, that he is guilty of fraud, or attempted fraud, if his goods are lost or injured and he demands for his damages an amount above the valuation or limitation agreed to. If it be true, as the trial court charged the jury, that “the plaintiff must be presumed, under the facts of this case, to have assented to the terms and conditions of the receipt,” then, within the better authorities, the limitation of the carrier’s liability not to exceed $50 was the same, as fixing the value of the property transported at $50 only, and the limitation of the express company’s liability not to exceed the $50 stated in the receipt was reasonable and just. Boorman v. Express Co., 21 Wis. 152, is a case like this. A limitation of $50 was contained in the receipt. Chief Justice Dixon, writing the opinion, held that — “An express company may exempt itself by special contract from liability as insurer; or for the default or negligence of any person to whom the property may be delivered by it for the performance of any act or duty in respect thereto, off its own routes; or for loss or damage of any package for over $50, unless the just and true value thereof is stated in the receipt.” In Duntley v. B. & M. Rld. Co., supra, it was decided that— “A regulation of a carrier with respect to the. transportation of live animals, which fixes the ordinary value of horses for which it will hold itself responsible in case of loss at $200 each, and requires extra compensation for transporting animals of greater value, is reasonable and valid.” In Durgin v. Express Co., 9 Lawyer’s Rep. 453, (N. H. 1890,) the receipt was like the one in this case, and limited the liability to $50. It was held that— “A shipper of goods who fills out one of the blank receipts ■contained in a book previously furnished by an express company for his use, and obtains the signature of the company’s agent thereto upon delivering to him a package for transportation, will be presumed to know the contents of the receipt; and if he receives such receipt without objection, his assent as to its conditions will, in the absence of. fraud, be conclusively presumed.” Clark, J., in delivering the opinion in that case, said: “The receipt signed by the defendants’ agent and servant at the time of the delivery of the package was taken by the plaintiff as evidence of the fact and purpose of its delivery, and of the terms and conditions on which the defendants received it. The receipt was contained in a book of blank receipts previously furnished by the defendants for the use of the plaintiff, and the written portions were in his handwriting, and the law presumes that the contents were known to him. The plaintiff understood it to be the shipping contract, and, in the absence of fraud, by receiving it without objection he was conclusively presumed to assent to its conditions. (Merrill v. Express Co., 62 N. H. 514; Grace v. Adams, 100 Mass. 505.) It is now generally held that the responsibility imposed on the carrier of goods by the common law may be restricted and qualified by express stipulation, where such stipulation is just and reasonable; and a stipulation that the carrier shall be informed as to the value of the goods delivered to him for carriage, as affecting the risk and the degree of care required, is clearly reasonable. . . . The plaintiff understood that he was securing transportation of the box to New York at a reduced rate, (in fact, at one-fifth of the regular rate,) by calling the value $50, and assuming a portion of the risk of carriage himself; and having agreed upon a valuation for the purpose of fixing the express charges, he cannot insist that the goods are of greater value for the purpose of increasing his claim for damages for the loss. Nor is it material whether the loss arose from the negligence of the defendants, or some other cause.’ The defendants agreed to respond in a sum not exceeding $50 in case of loss; and, for the purpose of the contract of transportation between tbe parties to the contract, the goods had no greater value.” See also to the same effect Squires v. Railroad Co., 98 Mass. 239; Railroad Co. v. Hanlien, 52 Ala. 615; Magnin v. Dinsmore, 56 N. Y. 168; Railroad Co. v. Weakly, 50 Ark. 397; 8 S. W. Rep. 134. In L. & N. Rld. Co. v. Wynn, (Sup. Ct. Tenn., January 2, 1890,) 14 S. W. Rep. 311, special contracts for a limitation of the liability of a carrier are not sustained. It is said in that case, among other things, that— “To our minds, it is perfectly clear that the two kinds of stipulation — that providing for total, and that providing for partial, exemption from liability for the consequences of the -carrier’s negligence — stand upon the same ground, and must be tested by the same principles. If one can be enforced, the other can; if either be invalid, both must be held to be so, the same considerations of public policy operating in each case.” In our opinion, the reasons stated-are wholly untenable. They proceed upon false premises. That court overlooks the power of the shipper to freely and fairly fix a valuation upon his own property. The carrier has the right to make reasonable rates for carriage. A total exemption from the liability on the part of a carrier would not be just or reasonable, and no person having reason would willingly and freely contract with a carrier that the property which he wished to have transported was absolutely worthless. The carrier is bound to receive and transport the property of the shipper. The shipper can place his own valuation upon the property delivered by him to the carrier to be transported. The carrier cannot arbitrarily fix any valuation on the property received from the shipper, but may reasonably insist on proper information as to the value of the property which he receives. He ought to have a right to know what it is that he undertakes to carry, and the amount and extent of his risk. Upon the value of the property, the risk incurred, and the distance the property is to be transported, the charges for carriage are fixed. Therefore it would seem to us that a contract fixing the value of the goods delivered to the carrier, or fixing a limitation of damage in case of loss or injury, is clearly reasonable as affecting the risk and the degree of care required concerning the property to be transported. With the above and foregoing limitations, we cannot conceive how the carrier can evade his duty or nullify the law. Upon the authorities cited, the instructions of the trial court were erroneous, and the instruction prayed for by the express company for limitation as to damages should have been given. There is nothing appearing in the evidence or the findings of the jury that shows, or tends to show, gross negligence, fraud, or intentional wrong upon the part of the express comPany- In the case of Railroad Co. v. Simpson, 30 Kas 645; The limitation was arbitrarily fixed by the carrier without the consent of the shipper. That contract was not just or reasonable, or freely or fairly entered into. It was in violation of public policy. It is unlike this case, because, when the box- in controversy was shipped, the shipping clerk of the Kellogg Newspaper Company filled out a receipt, and a man by the name of. Glass, a driver for the Pacific Express Company, signed it. No deceit or unfairness was practiced by the express company. In the case of the Telegraph Co. v. Crall, 38 Kas. 679, gross negligence was involved. Whether a telegraph company could exempt itself by contract from ordinary negligence, was not passed upon. That question was reserved. We do not think it is necessary to follow all that was stated in Kallman v. Express Co., supra; because, although that decision was made nearly 25 years ago, the question now at issue was not necessarily embraced in that decision, for the reasons heretofore named. The case of Railroad Company v. Simpson, supra, followed Railroad Co. v. Lockwood, 17 Wall. 357. This case is referred to and clearly distinguished in the later case of Hart v. Pa. Rld. Co., supra. Again, the box containing the type and plates was shipped from Kansas City, Mo. The receipt executed by the express company was executed and delivered at Kansas City, Mo., to the Kellogg Newspaper Company for P. T. Foley, the plaintiff below. In that state the law declared by the supreme court is, that— “A contract fairly entered into between carrier and shipper, specifying a fixed sum as the value of the property, and limiting the recovery in case of loss to that sum, is binding on the shipper.” (Harvey v. Railroad Co., 74 Mo. 538.) We must assume, so far as this case is concerned, that the parties, including the shipper and the express company, contracted with reference to the law of Missouri. The receipt was signed there, the box was delivered there, and was shipped from Missouri to Kansas. It seems to us that the shipper ought not to complain. If he had desired to insert, in the receipt which the express company was asked to sign, $144.55 as the full value of the box, or if he had desired to insert any larger amount, he had the option so to do; and if he had inserted the full value of the box and its contents, he could have recovered the value. But as the shipper voluntarily limited his loss or damage to the sum of $50 only, why should he refuse to receive the sum of $50, which was tendered him by the superintendent of the express company when he presented his claim for damages? The receipt, as executed, was just as he desired and wished it. The damage in case of loss or injury to the box or its contents was liquidated in advance by the voluntary action of the parties. “The limitation as to the damages or value has no tendency, in such a case as this, to exempt from liability for negligence.” (Hart v. Railroad Co., supra.) Generally, the charges for transporting a box or package valued at $144.50, $500, or $1,000, are more than when the value is $50 only, and if the shipper wishes to pay full charges and recover full value, in case of loss or injury from negligence, why should he not state to the carrier, or write in the receipt to be signed by the carrier, the full value? We now repeat what was said upon this point in Kallman v. Express Co., 3 Kas. 205, where the receipt was left blank as to the value, as in this case, but where a limitation was inserted in the receipt in case of loss or damage: '“The company exhibits to the employer the exact conditions upon which it will receive his property for carriage, to which he may assent or not as he may choose. If he assents, we think he should be bound thereby. As in this case, if the real value of the property was $592.53, the employer, in case of loss, would be as much, nay more, interested in having such value truly stated in the bill of lading or receipt as the company could possibly be in having the value understated. He ought then to have made known to the company the true value of the goods, and more especially as the limitation upon the liability of the company was so plainly stated in the receipt.” The judgment of the district court will be reversed, and the cause remanded for a new trial. Johnston, J., concurring. Valentine, J.: I think we should follow the decision made in the case of Kallman v. Express Co., 3 Kas. 205 — first, because it is right; and second, for the following reasons: It was made on February 17, 1865, more than 26 years ago; the courts have been open ever since, and 20 or more sessions of the legislature have intervened, and yet no modification of any of the rules therein enunciated has been made, but all seem to have been acquiesced in; and for these reasons it must be presumed that the parties to this action, and especially the express company, contracted with reference to such rules; and now, to overturn them, and to declare different rules for this case, would virtually be to make a new contract for the parties; and construing the present contract as the contract in that case was construed would render the contract valid, while to construe it as the express company now desires to have it construed would render it void. To construe the contract so as to limit the express company’s common-law liability only as an insurer, and only for losses and injuries brought about by other causes than the company’s own negligence, fraud or willful wrongs, would render the contract valid; while if it be construed in such a manner as to reach to the domain of negligence, fraud and willful wrongs on the part of the express company itself, and to limit the company’s liability so that the company would not be liable for losses occasioned by its own negligence, fraud or willful wrongs, would render the contract to that extent invalid and worthless. It must be remembered that in this case the value of the property transported was not agreed upon. Whether it was worth 1 cent, $1, $100, $1,000, or any other sum, greater or less, is left wholly blank. There seems to have been no thought of fixing by contract or otherwise the actual value of the property, or any value, but it was actually worth $144.55. In this failure to fix the value of the property by contract, this case differs essentially from the case of Hart v. Pa. Rld. Co., 112 U. S. 332. There are other distinctions between the present case and those relied on by the express company. Eor instance, the shippers themselves in some of the cases relied on by the express company were guilty of fraud or unfair dealing, as in the case of Oppenheimer v. Express Co., 69 Ill. 62, 63. In that case the shippers delivered to the express company for transportation a certain box containing watches and jewelry of the value of $3,800, without disclosing its contents or their great value, and paid only $1.40 for its transportation; while, if they had disclosed its contents and their value, they would have had to pay $10.90 for its transportation. The receipt which they took from the express company did not state the contents or the value of the goods, but stated, “Contents unknown.” The court in commenting upon these matters used the following among other language: “There was an actual attempt here by the agent of the shippers to fill in this blank space, but instead of inserting (3,800 ’ (the value), a mark or character was inserted inexpressive of any value. This shows that there was a designed suppression of the value of the goods. That was unfair conduct on the part of the shippers of the goods. The effect of such conduct to re lieve the carrier from his liability as insurer is asserted in the cases of — [here certain cases are given]. Had the true value of the goods been disclosed, there would have been an extra charge of $9.50, increased precautions would have been taken for the safety of the goods, and, as the evidence shows, they would have been saved.” In this case of Oppenheimer v. Express Co., no pretense of fault or negligence on the part of the express company was imputed, but, on the contrary, it was admitted by the parties that the company was not guilty of any fault or negligence; and in the later case of C. & N. W. Rld. Co. v. Chapman, (decided by the supreme court of Illinois, on May 14,1890,) 42 Am. & Eng. Rld. Cases, 392, 394; same case, 24 N. E. Rep. 417, 419, it is stated as follows: “In Oppenheimer v. Express Co., 69 Ill. 62, the court held that the contract exempting carriers from liabilities is not to be construed as providing against loss or injury occasioned by actual negligence on their part.” Indeed, the case of Oppenheimer v. Express Co. has no application to this present case. In the present case the shipper was not guilty of fraud or. unfair dealing, and the express company was unquestionably guilty of culpable negligence. In the case of Orange Co. Bank v. Brown, 9 Wend. 85, 114, et seq., an intended passenger on a steamboat, without paying extra fare, took with him on the steamboat as baggage an ordinary traveling trunk containing $11,250. In a few minutes afterward the trunk and its contents were removed, and the owner never recovered them. The owners of the steamboat had no knowledge of the contents of the trunk, nor of their great value, and it was held that they were not liable for their loss. Other distinctions might be shown between this case and the cases relied on by the express company, if it were thought necessary. The stipulation contained in the receipt given by the express company in the present case, limiting its liability for loss or damage, does not limit its liability except with respect to an amount in excess of $50. Up to that amount the express company’s liability remains precisely the same as it would be at common law, or as it would be if no contract limiting its liability had ever been made. But, for the excess above $50, the express company claims that it has obtained a boundless immunity from liability; that it has not only obtained an absolute exemption from all liability for all loss or damage above that amount where' the loss or damage has occurred without fault or negligence on its part, but that it has also obtained such an exemption where the loss or damage has been occasioned by its own negligence, or by its own fraud or willful wrongs, including the willful destruction of the property, or the greater wrong of feloniously stealing it. This cannot be correct. The stipulation in such receipt ought to be so construed as to exempt the company from liability for only such loss or damage in excess of $50 as might be occasioned by the fault or negligence'of others, or as might result from some accident, casualty or misfortune over which the company could have no control. I think the weight of authority sustains this view. While a common • carrier may make a valid contract exempting himself from his common-law liability as an insurer and for losses occasioned by the acts of others without his fault, or occasioned by such of his own acts only as do not involve any kind of wrong, or occasioned by circumstances over which he has no control, yet he cannot make a valid contract exempting himself from liability for losses occasioned by his own carelessness or negligence or improper acts. Such a contract would be against public-policy, and void. I think the contract in the present case should be construed precisely as though it did not attempt to limit the express company’s liability at all for losses occasioned by its own negligence or improper conduct, and I would refer to the following authorities in support of this view: Kallman v. Express Co., 3 Kas. 205; K. C. St. J. & C. B. Rld. Co. v. Simpson, 30 id. 645; K. P. Rly. Co. v. Peavey 29 id. 169; Telegraph Co. v. Crall, 38 id. 679; Farnham v. C. & A. Rld. Co., 55 Pa. St. 53; Express Co. v. Sands, 55 id. 140; Grogan v. Express Co., 114 id. 523; same case, 60 Am. Rep. 360; same case, 30 Am. & Eng. Rld. Cases, 9; Wyler v. Pa. Rld. Co., 134 Pa. St. 310; same case, 42 Am. & Eng. Rld. Cases, 390; Express Co. v. Moon, 39 Miss. 822; C. &c. Rld. Co.; v. Abels, 60 id. 1017; Express Co. v. Seide, 67 id. 609; same case, 42 Am. & Eng. Rld. Cases, 398; Kirby v. Express Co., 2 Mo. App. 370; McFadden v. Mo. Pac. Rly. Co., 92 Mo. 343; same case, 30 Am. & Eng. Rld. Cases, 17; Moulton v.St. P. M. & M. Rly. Co., 31 Minn. 85; same case, 12 Am. & Eng. Rld. Cases, 13; The City of Norwich, 4 Ben. 271; Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool Steam Co. v. Phenix Ins. Co., 129 U. S. 397; same case, 37 Am. & Eng. Rld. Cases, 681; Rosenfeld v. P. D. & E. Rly. Co., 103 Ind. 121; Express Co. v. Harris, 120 id. 73; same case 40 Am. & Eng. Rld. Cases, 151; Mo. Pac. Rly. Co. v. Harris, 67 Tex. 166; 'S. Pac. Rly. Co. v. Maddox, 75 id. 300; same case, 42 Am. & Eng. Rld. Cases, 528; Mo. Pac. Rly. Co. v. Manufacturing Co., Texas, 14 S. W. Rep. 785; St. L. A. & T. Rly. Co. v. Robbins, Texas, 14 id. 1075; Erie Dispatch v. Johnson, 87 Tenn. 490; same case, 40 Am. & Eng. Rld. Cases, 113; L. & N. Rld. Co. v. Wynn, 88 Tenn. 320; same case, 14 S. W. Rep. 311; L. & N. Rld. Co. v. Gilbert, 88 Tenn. 430; same case, 42 Am. & Eng. Rld. Cases, 372; Black v. Goodrich Trans. Co., 55 Wis. 319; M. & O. Rld. Co. v. Hopkins, 41 Ala. 486; Express Co. v. Stettaners, 61 Ill. 184; C. & N. W. Rly. Co. v. Chapman, (Ill., May 14, 1890,) 24 N. E. Rep. 417, 419; same case, 42 Am. & Eng. Rld. Cases, 392, 394, 396, 397; Judson v. Western Rld. Co., 6 Allen, (83 Mass.) 486; Orndorff v. Express Co., 3 Bush, (Ky.) 194; Express Co. v. Blackman, 28 Ohio St. 144; Lamb v. C. & A. Rld. & T. Co., 46 N. Y. 271, In my opinion, notwithstanding the stipulation in the aforesaid receipt, limiting, to some extent, the liability of the express company, the company was still bound at its peril to act in good faith as toward its employer, and to ^xercise reasonable care and diligence with respect to its employer’s goods. There was ample evidence to show negligence on the part of the express company, if not gross negligence. The goods were shipped from Kansas City'in good order. When they arrived, at their destination, at Lawrence, the box containing them was found broken. With due care, however, they might still have been saved, as is fairly inferable from the evidence, and as was the opinion of the jury, according to their findings. The box, however, was turned over by one of the express company’s agents, and a piece came out. Afterward the company’s agent attempted to take the box and contents from the express ear in which they were transported, and to put the same on a truck, and in doing so some of the type and some of the electrotype plates fell down between the car and the platform. Afterward they gathered them up and put them into a coal scuttle, and took them to a house belonging to the express company, where they remained for some time, and were afterward removed to the express company’s office, where they still remain so far as is shown. This seems like gross negligence. It was not necessary, however, that gross negligence should have been shown. Ordinary negligence only, or, in other words, a want of ordinary care, was all that was necessary. In the case of Kallman v. Express Co., supra, the following among other language, with reference to express companies limiting their common-law liability, is used: “An examination of the authorities bearing upon this point, will, we think, show that they may do so, provided,however, that due care and diligence'be used in the discharge of their trust. But carriers cannot in this way shield themselves from the consequences of fraud, gross negligence, and want of care. . . . It is only when such carriers act in good faith, and use due care and diligence in and about their business, that the law permits them to have the benefit of limitations, like that under consideration.” In the case of L. & N. Rld. Co. v. Wynn, supra, the following, among other language, is used by the court: “ The author of American and English Encyclopaedia of Law says: ‘By the clear weight of authority in England, Canada, the United States, and almost without exception in the states of the union, the rule has been adopted that the common carrier can make no contract, the effect of which will be to exempt him from liability for negligence.’ (2 Am. & Eng. Encyc. of Law, 822.) Is the limitation in the contract before us within, the prohibition of this eminently just and general accepted principle? Manifestly the stipulation does not contemplate total exemption from liability; it only provides for partial or limited exemption. Upon that distinction the nice and important question arises, can a stipulation of the latter character stand before the law when one of the former kind cannot? Or, to state the same question differently, and SO'as to apply it more directly to the facts of this case, the rule of law being established, as we have seen it is, that the defendant company could not lawfully have contracted with the plaintiff that it would in no event be liable for any part of the value of the mare, if lost or destroyed, can the limitation of its liability to $ 100 be upheld in the courts, if it should appear that her death resulted from the negligence of the company, and that she was in fact worth eight times that amount, as the jury found her to be? We unhesitatingly answer, ‘No/ The carrier cannot by contract excuse itself from a liability for the whole or any part of a loss brought about by its negligence. To our minds, it is perfectly clear that the two kinds of stipulation — that providing for total, and that providing for partial, exemption from liability for the consequences of the carrier’s negligence — stand upon the same ground, and must be tested by the same principles. If one can be enforced, the other can; if either be invalid, both must be held to be so, the same considerations of public policy operating in each case. With great deference for those who may differ with us, we think it entirely illogical and unreasonable to say that the carrier may not absolve itself from liability for the whole value of property lost or destroyed through its negligence, but that it may absolve itself from responsibility for one-half, three-fourths, seven-eighths, nine-tenths, or ninety-hundredths of the loss so occasioned. With great unanimity the authorities say it cannot do the former. If allowed to do the latter, it may thereby substantially evade and nullify the law, which says it shall not do the former, and in that way do indirectly what it is forbidden to do directly. We hold that it can do neither. The requirement of the law has ever been, and is now, that the common carrier shall be diligent and careful in the transportation of its freight, and public policy forbids that it shall throw off that obligation by stipulation for exemption in whole or in part from the consequences of its negligent acts.” In the case of Express Co. v. Seide, supra, the supreme court of Mississippi decided as follows: “A stipulation in a receipt given by an express company that, if the value of the goods shipped is not stated by the shipper and specified-in the receipt, the holder will not demand more than $50 for loss or damage, exempts the carrier from greater liability only when the loss did not result from negligence on its part. This is true, although a greater charge is made for carrying packages over $50 in value, and the shipper fails to state the value and pays the minimum charge.” (Part of syllabus.) In the case of Kirby v. Express Co., supra, the court of appeals of St. Louis, Mo., decided as follows: “A clause in a contract between an express company and a shipper stated that goods shipped are of the value of $50, unless their value should be inserted in the contract, and that the company, in case of loss, would not be liable for more than $50, unless the value was so inserted, and the value of the goods was not inserted. Held, That this did not relieve the company from liability for the full value of the goods if lost through its fault, and that a presumption of negligence arose from the mere fact of loss.” (Part of syllabus.) In the case of McFadden v. Pac. Rly. Co., 92 Mo. 343, supra, the supreme court of Missouri decided as follows: “While a shipper may release a common carrier from' its obligation as an insurer of his property, yet the carrier cannot, by any kind of stipulation, exempt itself from liability for its own negligence.” (Part of syllabus.) See also the other eases above cited, and especially the Pennsylvania cases. I think the judgment of the court below should be affirmed.	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The opinion of the court was delivered by Valentine, J.: This was an action commenced in the district court of Chase county, on February 3,1888, by David Sauble, against O. H. Drinkwater and P. P. Schriver, to recover damages for alleged injuries to the plaintiff’s land, alleged to have been caused by the erection by the defendants, in October, 1886, of a mill-dam across the Cottonwood river, to the height of 10 feet, and causing the water therein to rise upon the plaintiff’s land to the height of five feet above its ordinary and natural height, and thereby causing the alleged injuries; and the plaintiff also asked for the abatement of the dam to the extent of five feet from the top. The defendants answered, alleging that the dam complained of was the mere replacement of a former dam which had been in existence and maintained by them for more than 15 years prior to the erection of the new dam, under a parol agreement between themselves and the plaintiff’s grantors; and that the new dam was not higher than the old one, and did not cause the water to flow back farther or to rise higher on the plaintiff’s land than the old one did. The plaintiff replied by filing a general denial. A trial was had before the court and a jury, and the jury rendered the following verdict, and, in answer to interrogatories, made the following special findings, to wit: “ VERDICT. “We, the jury impaneled and sworn in the above-entitled case, do upon our oath find for plaintiff, and assess his damages at $60.” “special findings. “1. What was the height of the old dam when first constructed, and up to January, 1870? Ans. Eight feet. “2. What was the height of the new dam when this suit was brought? A. 8 feet 8\|- inches. “3. Was not the new dam erected 68 feet lower down on the ripple from where the old dam was located ? A. Yes. “4. What was the amount of fall between the old and the new dam? A. Six inches. “5. Did the water, while the old dam was in use for the new mill, pass through the old flume of the old mill where the wheel stood when in use for the old mill, and go directly into the flume of the new mill? A. Yes. “6. What is the difference in inches in the height of the floor of the flume between where the wheel stood in the old mill, and where it stands now? A. About six inches. “7. What was the distance from or difference between the head-water to tail-water on the old dam from 1868 to 1881, at fall of dam? A. About eight inches. “ 8. What is now the distance from or difference between the head-water and tail-water at the new dam when at fall of dam? A. 7 feet 8-J- inches, according to evidence. “ 9. With an ordinary stage of water in the river, does the new dam cause dead-water further up the rivfer than the old dam did when in good order? If so, how much further up the stream? A. Yes to first clause. No definite testimony to the last clause.” The court also made the following finding, to wit: “It was further considered, ordered and adjudged by the court, that said new mill-dam constructed by said defendants was built in continuation of the old dam, and that the new dam is and was eight inches higher than the old dam, and that said new dam be taken down and abated by said defendants to the height of eight inches from the top of said dam.” Upon this verdict and these findings the court below ren dered judgment in favor of the plaintiff and against the defendants for $60 damages, and for the abatement of the dam to the extent of eight inches from the top; and the defendants, as plaintiffs in error, bring the case to this court for review. Two principal questions are involved in this case. First^ did the defendants, by building and maintaining the old dam as they did, acquire a right to build and maintain a new dam of the same capacity as the old one, or, in other words, one that would back the water or cause it to rise upon the plaintiff’s land as high as the old one did? Second, if the defendants did acquire any such right, then did they depart from the same by constructing the new dam in such a manner as to cause the water to flow back farther or to rise higher upon the plaintiff’s land than was done by the old dam? Without deciding the first question, we shall pass to the second one, to wit: If the defendants had a right to erect and maintain a new dam, did they construct the same in accordance with such right ? No claim of error is made with regard to anything that occurred in the court below prior to the rendering of the verdict and the making of the special findings by the jury; and no objection was urged as against such verdict and findings at the time when the same were rendered and made, nor until a motion for a new trial was filed. The objections now urged against them are as follows: It is claimed that they are not supported by sufficient evidence; that the special findings áre inconsistent with each other and inconsistent with the general verdict; that they do not mean what the court below and the jury evidently believed they meant, and that they are not sufficient to uphold the judgment actually rendered in the case. Objections are also urged against the finding made by the court itself. It is claimed that such finding is not supported by the evidence, and is contrary to law, and that the court had no power to make it. It is true the findings of the jury are not as intelligible as they might be, and as to the seventh there must be some mistake; but still, with regard to all the material findings made by the jury, we think they are capable of being harmonized with each other and with the general verdict, and substantially with the finding made by the court itself; and taking all the findings and the general verdict together, we think they support the judgment. And it is our duty to give them such a construction, if we can, as will harmonize them an(j majje them support the judgment. (Bevens v. Smith, 42 Kas. 250, 251, and cases there cited; U. P. Rly. Co. v. Fray, 43 id. 750, 759, and cases there cited; Nichols v. Weaver, 7 id. 373; Simpson v. Greeley, 8 id. 586; St. L. & S. F. Rly. Co. v. Ritz, 33 id. 404.) The general verdict is a finding in favor of the plaintiff and against the defendants upon all the issues in the case. It is therefore virtually a finding that the new dam is higher than the old one was; that it causes the water to flow back farther and to rise higher upon the plaintiff’s land than the old one did, and that the plaintiff was injured and damaged by reason thereof and by the wrongs of the defendants. It was also found specially by the jury that the new dam is 8 feet 8J inches high, and that the old dam was only eight feet high; that the new dam causes the water to flow back farther up the river than the old dam did; and that the plaintiff was thereby damaged to the amount of $60. Evidently the jury intended to find that the new dam, in altitude, measuring from the same level, was 8-J inches higher than,the old dam was. And the court itself found that the new dam was eight inches higher than the old dam was, and -ordered that the new dam should be abated to that extent. An action to abate a mill-dam for the reason that it causes injury to the property of an upper proprietor is an action to abate a nuisance, and an action to abate a nuisance, as well as an action to enjoin a nuisance, is an equitable remedy. (Gould, Waters, §555; 3 Pom., Eq. Jur., §1359.) And in actions of an equitable character the trial may be before the court, or before a jury, or before a referee, or a part before one, and a part before another, as the court in its discretion shall determine. (Civil Code, §§ 266, 267; Hunt v. Spencer, 20 Kas. 126; Hixon v. George, 18 id. 253, 256, 257; Carlin v. Donegan, 15 id. 495; Woodman v. Davis, 32 id. 344, 346, 347, and cases there cited.) The court below undoubtedly had the right to make the find-ing which it did; and upon all the findings as made by the court and jury, we cannot say that the judgment rendered by the court is erroneous; nor can we say that such findings are not supported by sufficient evidence. There seems also to be a claim that there is a misjoinder of causes of action, but evidently there is not. A plaintiff, in an action upon a cause of action for damages arising from injuries to his land occasioned by the overflowing of the same with water caused by the wrongful construction and use of a mill-dam, may unite with such cause of action, a cause of action to abate the mill-dam, or to perpetually enjoin its use, so far as its use is wrongful and a nuisance. (Akin v. Davis, 11 Kas. 580.) Some slight errors have intervened in this case, as before intimated, but no substantial error has been committed as against the rights of the plaintiffs in error. There was evidence introduced that tended to show that the new dam causes the water to rise upon the plaintiff’s land much more than eight inches higher than the old dam caused it to rise. The judgment of the court below will be affirmed. All the Justices concurring.	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Opinion by Green, C.: The information in this case charged the defendant with feloniously buying and receiving one mare, of the value of $100, the property of Carl Gall, jr., “then lately before feloniously stolen, taken and carried away,” knowing the same to have been so stolen. The part of § 92 of the crimes act which is applicable to this case is as follows: “Every person who shall buy or in any way receive any goods, money, i ights in action, personal property, or any valuable security or effects whatsoever, . . . that shall have been stolen from another, knowing the same to have been so stolen, shall upon conviction be punished in the same manner and to the same extent as for stealing the money, property or other thing so bought or received.” The defendant was tried and convicted in the district court of Grant county, on the 21st day of July, 1890, and sentenced to imprisonment in the penitentiary for two years. He appeals to this court. The evidence in this case shows that the mare alleged to have been stolen, was taken by John Stoffel from the place of Carl Gall, in Grant county, about 3 o’clock in the afternoon, on Wednesday, March 5,1890, and led to his place in Kearny county. The claim was made by Stoffel that the animal had been given to him for one of bis, which Gall had been charged with shooting. There is no evidence to indicate that the defendant ever received or purchased the mare in Grant county. If he ever received the mare at all, it was in Kearny county. There is no evidence to connect the defendant with the reception or possession of the mare in Grant county, and the only theory upon which the conviction can be upheld is, that the offense charged to have been committed was begun in Grant county and completed in Kearny. In accordance with this theory, the court instructed the jury that if there were any overt acts committed in Grant county, and if there were a series of such overt acts continuing into Kearny county, up to the time of receiving the mare, then such reception would be in Grant county. The overt acts in Grant county, if any, consisted in the defendant being present at Hornaday’s printing office, in Ulysses, in Grant county, on the 14th day of March, 1890, where a consultation was had between Stoffel and his attorney in regard to his retaining possession of the mare, and the giving of a redelivery bond, in ease the animal should be replevied from him; that the attorney for Stoffel wrote something on a piece of paper which he gave to the defendant, and told him to “get that or that mare;” that in pursuance with the advice, the defendant left town and went to Surprise, in Grant county, and from there to Stoffel’s place, in Kearny county. We do not think the evidence warranted a conviction in Grant county. There was no evidence that the defendant commenced the commission of the offense charged against him in the county in which he was tried. The language of § 23 of the criminal code is: “ When a public offense has been committed, partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in one or more counties, the jurisdiction is in either county.” Now, can it be said that the act of the defendant in going from one county to another, under the advice of counsel, to aid a person' in maintaining what he regarded as his legal rights, constituted any element of the crime alleged? The defendant was charged with buying and receiving stolen property in Grant county. It is conceded that he did not buy or receive the mare in Grant county, but it is insisted that the overt act which led to the commission of the offense had its inception in this county. Can this be true? The elementary principle is so firmly established, that there must be some act coupled with an evil intent to constitute, in law, a crime, that it is but necessary to state it. Suppose it should appear that the defendant started from Ulysses for the purpose of obtaining the mare in Kearny county: it might be said that the evil intent existed in his mind, but unless that evil intent was combined with some act in Grant county, the offense would not be complete. We do not think the fact that the defendant traveled from one county to another was such an overt act as would constitute an offense. The evil intent might have existed in the mind of the defendant while in Grant county, yet if no act was committed there, one necessary element of the crime would be lacking. There must be a concurrence, in point of time, of the act and intent, to constitute an offense. If the evil intent existed in the defendant’s mind in Grant county, to receive the animal charged to have been stolen, there was no act coupled with such intent, and hence there was no completed crime committed in Grant county by the defendant. It is recommended that the judgment of the district court be reversed. By the Court: It is so ordered. All the Justices concurring.	[ 112, 110, -47, 61, 122, -32, 34, -104, 67, -113, 115, 83, -23, 64, 1, 49, -29, -19, 84, 121, -60, -78, 87, -13, -46, -13, -21, -59, 51, 77, -20, 85, 10, 48, -118, 85, 70, 40, -95, 90, -114, 1, -102, -24, -38, -24, 56, 43, 22, 75, 33, 46, -17, 46, 84, 127, 105, 46, 75, 47, -64, -31, -77, 13, -23, 10, 2, 86, -72, 5, -56, 46, -112, 49, 0, -8, 123, -74, -122, 84, 68, -119, 13, 98, 34, 1, 45, -115, -96, -52, 47, 95, -121, -89, -122, 88, 43, 109, -106, -97, 82, 82, 39, -4, -29, -43, 21, 108, 35, -18, -108, -109, 111, 44, -118, 101, -45, -79, 55, 113, -49, 98, 124, 68, 112, -101, 14, 119 ]
The opinion of the court was delivered by Benson, J.: This appeal is from a conviction for persistent violation of the prohibitory liquor law. On a motion to quash the information it was contended that the act under which the prosecution was instituted (Laws 1911, ch. 165) is unconstitutional because the subject is not clearly expressed in the title. The act was assailed upon the same ground in The State v. Adams, 89 Kan. 674, 132 Pac. 171; The State v. Schmidt, ante, p. 457, 140 Pac. 843, and The State v. King, ante, p. 669, 141 Pac. 247, but was held valid. The defendant alleges that the act-is void for indefiniteness “in that it does not prescribe the number of ‘provisions’ violated subsequent to a previous conviction which is to constitute a person charged thereunder with being a ‘persistent violator;’ nor the number of previous ‘violations’ of the prohibitory liquor law for which a person charged with being a persistent violator must have been convicted.” Section 1 of the act provides that: “Any person or persons who having once been duly convicted of the violations of the prohibitory liquor law and who shall thereafter directly or indirectly violate the provisions of the prohibitory liquor law shall be considered a persistent violator of the prohibitory liquor law.” It is argued that the expression “violations of the prohibitory liquor law” include only persons who have violated all the provisions of the law. It will not be so held. If any statutory authority is needed to construe the plural here to include the singular, it is found in subdivision 3 of section 9037 of the General Statutes of 1909. At the time of the arrest the officer took into his possession a bottle of liquor which the defendant had just sold and two others found concealed on his person. These bottles were introduced in evidence on the trial. While the jury were deliberating, the defendant being-absent in jail but his attorney being present, the jury in a written request asked for the bottles. The court called the attention of the county attorney and the attorney for the defendant to the request and asked if there were any objections. The attorney for the defendant gave a negative answer, and humorously suggested that a corkscrew be sent along. The bottles were then sent to the jury unopened and with the seals unbroken. They bore the labels of a certain brand of whisky, reciting that it had been bottled in bond. On the hearing of the motion for a new trial members of the jury testified that a bottle was opened in the jury room and that jurors tasted and smelled of its contents. The abstracts show that the three bottles with the labels upon them were identified and introduced in evidence and there was no claim that they did not contain whisky. It has been held in several cases that it is not error in prosecutions for selling liquor to allow the jury to take bottles offered in evidence to the jury room. (State v. Lindquist, 110 Minn. 12, 124 N. W. 215; Phillips v. The State, 156 Ala. 140, 47 South. 245.) In State v. Teale, 154 Iowa, 677, 135 N. W. 408, it was held that it was proper to allow a skull showing the location of an injury to be taken to the jury room. That was a prosecution for murder. Contrary rulings have probably been made, but the question to be decided here is whether, if it should be conceded that there was error in sending the exhibits to the jury room in the absence of the defendant, his substantial rights were affected. The statute provides that this court must give judgment without regard to technical errors or defects or exceptions which do not affect substantial rights. (Crim.* Code, § 293.) The district court, in denying the motion for a new trial, stated that it should be overruled under the circumstances. The circumstances were shown by the evidence. If it was undisputed that the contents of the bottles were true to the labels and contained whisky — and it is not contended or suggested otherwise — no prejudice to substantial rights is shown. The situation presented does not afford grounds for reversal. The judgment is affirmed.	[ -16, -26, -36, -99, 42, 96, 42, -4, -15, -107, -9, 115, -19, 80, 4, 123, 120, 127, 85, 105, -36, -105, 23, 1, -26, -77, -40, -43, 53, 75, -27, 116, 12, -80, -62, -11, 102, -48, -45, 92, -118, 5, 56, -51, 99, -56, 52, 27, 3, 31, -27, 31, -29, 43, 26, -61, 9, 44, 75, 29, 64, -80, -104, -99, -49, 22, 35, 4, -104, -123, -56, 62, 28, 17, 1, -8, 115, -106, -122, 116, 15, -119, -83, 102, -30, 33, 21, -17, -84, -88, 60, 47, -99, 38, -104, 80, 107, 12, -74, -99, 116, -74, 46, -4, -29, 86, -47, 44, -122, -117, -92, -79, 11, 60, 2, 86, -53, 35, -80, 97, -60, 110, 92, 117, 113, -101, -113, 20 ]
The opinion of the court was delivered by Burch, J.: In September, 1911, Tyree purchased an automobile from Moomaw and gave a chattel mortgage to secure a portion of the purchase price. The mortgage was withheld from record until April 2, 1912. On March 2, 1912, Dixon loaned Tyree a sum of money and took as security a chattel mortgage on the automobile. Dixon had no knowledge of the Moomaw mortgage and. withheld his own mortgage from record. During all this time the automobile remained in Tyree’s possession. Tyree left the state, and on April 2 Moo-maw found the automobile in a.barn owned by L. K. Hoyt. Hoyt claimed that Tyree owed twenty dollars for rent and storage of.the automobile. Moomaw paid this claim, took possession of the automobile, and filed his mortgage for record. Dixon then brought replevin. Moomaw had no knowledge of Dixon’s mortgage until after the events of April. 2. Dixon recovered and Moomaw appeals. On final analysis the question presented is one of statutory interpretation. The statute involved reads as follows: “Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be .accompanied by an immediate delivery and be followed "by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be forthwith •deposited in the office of the register of deeds in the county where the property shall then be situated, or if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident.” (Gen. Stat. 1909, § 5224.) Since Moomaw’s mortgage had not been recorded and he had not taken possession of the automobile prior to March 2, his mortgage was absolutely void as against Dixon, who on that day became a subsequent mortgagee in good faith. Dixon then had a first lien, which he needed to protect only as against creditors and as •against purchasers and mortgagees who became such subsequent to March 2. Moomaw did not belong to any of these classes. The term “creditors,” within the meaning of this statute, includes only those who have perfected a right to appropriate the specific property, as, for example, by attachment or execution levy. (Cameron, Hull & Co. v. Marvin, 26 Kan. 612, 627; Abernathy v. Madden, 91 Kan. 809, 139 Pac. 431.) Eollowing March 2, Moomaw’s rights rested entirely upon his chattel mortgage. The fact that Moomaw took possession and filed his chattel mortgage for record in ignorance of Dixon’s mortgage is of no avail. He did so not as a creditor •and not as a purchaser or mortgagee who became such subsequent to March 2, but merely as the holder of an unrecorded mortgage which, on March 2, became of no legal effect so far as Dixon was concerned. Dixon Tested under no necessity to record his mortgage except as to creditors and as to purchasers and mortgagees subsequent to him. The fact that Moomaw took possession did not •strengthen his position. He took possession by virtue of his chattel mortgage only, and this instrument was a nullity as to Dixon. While Moomaw’s- possession was good against the mortgagor, it was good only by virtue of the right conferred by and the consent expressed in his mortgage, which fell before Dixon’s superior right as a subsequent mortgagee in good faith. If after Dixon’s interest attached the mortgagor had delivered possession to Moomaw, or if the mortgagor had authorized Moomaw to take possession, or had given consent that Moomaw take possession, and possession had followed, Dixon’s mortgage would have failed as against Moomaw just as Moomaw’s mortgage now fails as against Dixon. By virtue of the new arrangement Moomaw would have become in legal effect a mortgagee in good faith subsequent to the giving of Dixon’s mortgage. He would occupy precisely the same situation as a third person taking a mortgage in good faith. The same result would have followed if by new consent, or other arrangement with the mortgagor, Moomaw had filed his mortgage for record. In that event Moomaw’s right would have dated as if it had originated with the new transaction with the mortgagor, consummated by filing the instrument for record. “If the mortgagee, whose mortgage is not recorded, and who does not have possession of the property, records his mortgage with the consent of the mortgagor, or takes possession of the property with the consent of the mortgagor, his mortgage then has the force and effect of a mortgage executed on the day on which it is filed for record, or on which the property is delivered. It is the same then as though a new mortgage had been executed by the parties and recorded. The old mortgage is then given life and force and effect by the joint action of both the parties, and hence must be held to be valid from that time on, as against all persons.” (Cameron, Hull & Co. v. Marvin, 26 Kan. 612, 628.) Commenting on this doctrine the supreme court of Oklahoma said: “Nor is it inequitable to the junior mortgagee that this should be so, for the force of the statute on which he relies to give validity to his mortgage over the prior unrecorded mortgage also renders his unrecorded mortgage liable likewise to be held void as to subsequent incumbrancers or purchasers in good faith and without notice. This construction placed upon the statute will make it uniform in its operation as to all.” (Garrison et al. v. Street & Harper Furn. & Carpet Co., 21 Okla. 643, 651, 97 Pac. 978.) In this case the mortgagor absconded and Moomaw was relegated to his rights under his naked chattel mortgage, which had lost its priority as against Dixon. The precise question here involved was considered and decided by the supreme court of Iowa in the case -of Sheets v. Poff, 123 Iowa, 714, 99 N. W. 573. The syllabus reads as follows: “Under Code, section 2906, the rights of a chattel mortgagee without notice of a prior unrecorded mortgage are superior to those of the holder of the prior mortgage, although possession thereunder was taken before the subsequent mortgage was recorded; and the claim of the prior mortgagee will not be given preference on the ground that he was a creditor of the mortgagee.” In the opinion it was said: “We think the plain reading of the statute, viewed in the light of the evident purpose thereof, admits of but one conclusion; that the failure to record was without effect as bearing upon the respective rights of the mortgagees. The statute says that an unrecorded mortgage of chattels shall be held invalid as against subsequent purchasers without notice. And it has been uniformly held that a subsequent mortgagee is a purchaser within the meaning of the statute. Without doubt, therefore, Mrs. Holloway had the right to rely upon the fact that the record disclosed no incumbrance on the property when she took her mortgage, and as to all pre-existing liens or claims her status as a superior lienholder became fixed qpon the delivery to her of such mortgage. The rights thus acquired by her could not thereafter be destroyed by any act of the plaintiff, assuming to proceed under authority of his unrecorded mortgage. As to him no notice of the subsequent mortgage, either actual or constructive, was required, as in no sense could he be prejudiced by want of notice. It is subsequent purchasers or mortgagees that may be heard to complain of a failure to give notice, and hence, by her failure to record her mortgage, the defendant took chances only on some subsequent disposition of the property by the owner thereof still remaining in possession.” (p. 716.) It does not appear from the agreed facts that Hoyt held a lién upon the automobile and Moomaw acquired no lien by the payment of Hoyt’s claim. The judgment of the district court is affirmed.	[ 112, 121, -40, -68, 74, 96, 42, -101, 90, -128, 48, -45, -21, 70, 20, 13, -14, 105, 101, 121, -11, -77, 7, 1, 80, -13, -39, -35, -75, -51, -28, 94, 76, 32, -62, 85, -26, -56, -59, 92, 74, -123, 58, 69, -39, 80, 52, 59, 4, 76, 65, -113, -29, 42, 31, 75, 105, 40, 91, 57, -16, 112, -117, 7, 127, 0, -79, 36, -104, 33, -16, 8, -108, 81, 16, -7, 115, -74, -106, 116, 77, -101, 9, 38, 103, 18, 97, -17, -4, -104, 14, -13, 47, -122, -110, 121, 3, 105, -97, -99, 126, 0, 6, -2, -17, -43, 29, 108, 7, -113, -106, -109, -81, 126, -100, 3, -17, 7, 36, 113, -49, -6, 93, 68, 123, -101, -98, -15 ]
The opinion of the court was delivered by Burch, J.: The defendant was convicted in the court of Topeka upon a complaint charging him in one count with obstructing and opposing an officer in an attempt to serve a warrant for the defendant’s arrest, and in a second count with assault and battery on the officer while attempting to serve the warrant. The defendant appealed to the district court, where he was again convicted on both counts. A motion in arrest of judgment was sustained as to the first count. Judgment was entered on the verdict of guilty under the second count, and the defendant appeals. Although the charging part of the first count used the word “feloniously,” the case was tried as if each count charged a misdemeanor, and the court in its instructions to the jury referred to the entire charge against the defendant as one for misdemeanor. It is said that the court misdirected the jury in a material matter of law. There is no bill of exceptions. The warrant which the officer was attempting to serve when resisted and assaulted and beaten is not preserved, and the proof may have disclosed that it issued in a misdemeanor and not in a felony case. In that event resistance of service was a misdemeanor only, but it is no longer material whether the court called the offense charged in the first count a felony or a misdemeanor, and the reference to the charge in the second count as being one for a misdemeanor was apposite. It is said that the verdict is bad because it found the defendant guilty on both counts as charged in the complaint, that is, guilty of a felony and of a misdemeanor. There is no contention that guilt of a misdemeanor under the second count was not fully proved, and it is no longer of any consequence what happened under the first count. It is said that the court erred in sustaining the motion in arrest of judgment. If so the defendant can not complain. He asked the court to sustain it and thereby escaped punishment on one count. Perhaps the defendant means that the court erred in sustaining the motion in arrest of judgment as to one count only. The grounds of thé motion in arrest of judgment were that the defendant was charged with a felony, that he had been accorded no preliminary examination and had not waived the right to such examination, that he had not had the advantage of the proper number of challenges to jurors, and that he had been tried as for a misdemeanor. If these things were true they did not singly or collectively furnish ground for a motion in arrest of judgment. “A motion in arrest of judgment is an application on the part of the defendant that no judgment be rendered on a verdict of guilty or finding of the court, and may be granted by the court for either of the following causes: First, that the grand jury who found the indictment had no legal authority to inquire into the offense charged, by reason of it not being within the jurisdiction of the court; second, that the facts stated do not constitute a public offense.” (Crim. Code, § 277.) By submitting to a trial as for a misdemeanor without objection, the defendant waived preliminary examination and extra challenges to jurors. If all the grounds stated in the motion for arrest of judgment were true, they had no relevancy to the second count, the only one on which judgment was pronounced and the only one to be considered in this appeal. It is said that the submission of two offenses to the jury, one a felony and the other a misdemeanor, must have prejudiced the jury against the defendant. As remarked before, the evidence is not here and the court can not say from the record that the defendant’s substantial rights were infringed. In his brief, however, it is stated that the two charges related to one continuous and indivisible transaction. This being true the defendant could not be harmed no matter how many counts were employed in charging the transaction or how many legal aspects it presented, if the proof showed to the satisfaction of the jury that it took place. The judgment of the district court is affirmed.	[ -48, -20, -7, -36, 11, 96, 34, -4, 81, -109, -74, 115, -19, -53, 5, 121, -6, 125, 85, 105, -12, -77, -121, -63, -74, -13, -55, 85, -73, -49, -18, -42, 78, -16, -126, -43, -90, 74, -59, 92, -114, 5, 9, -47, -45, 10, 36, 57, 4, 11, 49, -114, -5, 43, 26, -61, -23, 40, -54, -67, -16, -104, -101, -123, 79, 16, -77, 2, -98, 7, 80, 36, -98, 49, 0, -22, 115, -106, -126, 84, 77, 27, -19, 38, 98, 33, 13, -50, -72, -55, 46, 63, -99, -89, 24, 88, 104, -124, -106, -99, 116, 54, 6, -2, -29, -108, 25, 108, 11, -49, -76, -111, -49, 52, -110, 122, -21, -95, 0, 112, -50, -10, 92, -57, 90, -101, -81, -100 ]
The opinion of the court was delivered by West, J.: Brinkman, who owned a hotel property, leased it for five years to Stewart with an option of five years more. Stewart transferred to Maxfield, who was accepted as his successor by Brinkman. After-wards Brinkman sold the property to Burchfield, giving a warranty deed. Burchfield came on to take possession, and Maxfield refused to surrender, claiming to be a tenant for a second five-year term. A notice to vacate served by Brinkman was not observed, and Burchfield brought a forcible detention action in justice court and was defeated. Maxfield had offered to sell the furniture in the hotel for $3200, and after con-' siderable negotiation Burchfield paid him $2500 and took a receipt showing that $1000 was for furniture and $1500 for possession. This suit was brought on the covenants of warranty to recover the $1500 together with other items, including the expense of the suit in justice’s court and attorney’s fee, alleging that the $1500 paid for possession was less than its value. The court instructed the jury that if Maxfield held possession under the lease and Brinkman collected rent after the expiration of the term without objection on his part, this would make Maxfield a tenant for another term of five years; that the measure of damages was the fair and reasonable worth of Maxfield’s interest, together with such additional sum as the plaintiff was obliged to expend in an endeavor to obtain possession. The plaintiff testified that the possession was worth what he paid for it. The jury returned a verdict in favor of the plaintiff for $1489.40, being nearly the amount sued for less certain offset and credit. The defendant appeals, and maintains, first, that the five-year lease had expired and that Maxfield was only a „tenant from month to month; and second, that the court erred in charging the measure of damages to be the value of the possession instead of the amount the plaintiff was compelled to pay therefor. The jury apparently understood that Maxfield’s option to hold for another term had been recognized by Brinkman’s collecting rent without objection, the only instruction on this point being the one already referred to. The option provision of the lease was as follows: “It is further agreed that after the expiration of this lease the party of the second part shall have the option for a further period of five years from that date, provided that the terms and conditions are satisfactory to both parties of this lease.” Brinkman testified that when the lease expired, and repeatedly afterwards, he told Maxfield that he wanted to sell the property and would not renew the lease, and that he, Maxfield, could renew only as a tenant from month to month. Another witness testified that he heard one of these statements in a conversation between Brinkman and Maxfield. An equivocal denial of such conversation was made by Maxfield, but no direct denial of Brinkman’s statements to him. Two other witnesses stated that Max-field had told them that Brinkman would not give him a new lease but would only let him have it a month at a time, 'and this was not denied, so that the evidence, without substantial dispute, showed that there was no permission to hold over except from month to month. One of the grounds of the motion for a new trial was that the verdict was not sustained by sufficient evidence and was contrary to law. Another was error in assessment of the amount of recovery, the same being too large. While the evidence shows a liability for failure to put the plaintiff in possession of the property which he had purchased by warranty deed, it appears that the error regarding the renewal of the lease caused the matter to be regarded from the standpoint of Maxfield’s tenancy under a five-year term instead of his tenancy from month to month. The true measure of damages is the loss occurring to the plaintiff as the natural, direct and proximate result of the breach. (George v. Lane, 80 Kan. 94, 102 Pac. 55.) This would consist of the reasonable and necessary expense of the forcible-detention action, including the attorney’s fee therein, but not the sum paid for house rent, or for moving, these being too remote. The plaintiff is entitled to recover also what the tenant’s possession was fairly and reasonably worth on the basis of his being a tenant from month to month. (Gilbert v. Rushmer, 49 Kan. 632, 31 Pac. 123; George v. Lane, supra; Barker v. Denning, 91 Kan. 485, 138 Pac. 573.) The set-off and credit appear to have been properly allowed. The judgment is reversed and the cause remanded for further proceedings in accordance herewith, which proceedings may be avoided if the parties agree upon the adjustment of the matter between themselves as it would seem they ought to do.	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The opinion of the court was delivered by Mason, J.: A. W. Cain asks a writ of mandamus against the county attorney and county clerk of Ford county requiring the one to approve the form of, and the other to file, various papers by which he seeks to acquire title to a tract which he asserts is an island in the Arkansas river, owned by the state. The defendants resist the application and contend that it should be denied for these reasons, among others: Because the tract in question never was an island; because if it ever was an island it is not one within the meaning of the statute of 1913; because it has been occupied and improved by the city of Dodge City as a public park, and in virtue of that fact is by such statute withdrawn from settlement; because the plaintiff has never in fact made a settlement on the tract, and in other respects has not brought himself within the operation of the law; because the bond offered by the plaintiff is insufficient. Whether the land involved is owned by the state, whether if so it is open to settlement, and whether the plaintiff has made settlement upon it, are questions of fact not to be tried out in this proceeding. The statute provides that after the filing of such papers as are tendered by the plaintiff steps shall be taken by which these questions and others — “the issues of fact and of law, and all claims of the respective parties to such lands” — shall be fully tried and determined in the district court. (Laws 1913, ch. 295, § 3.) The acceptance of the plaintiff’s papers for filing is not a recognition of any right or claim made by him; it merely initiates a proceeding under the statute by which his rights and those of other claimants may be determined. We think, therefore, that they should be approved as to form by the county attorney and filed by' the county clerk, unless they are defective upon their face. No such defect is pointed out, but it is said that the only surety on the bond who qualifies is a nonresident of the county, concerning whose responsibility the clerk has no information. The statute requires sureties to be residents of the state, but not of the county. (Gen. Stat. 1909, § 6345.) One of the sureties makes affidavit that he is worth fifty thousand dollars over and above all debts and exemptions. The form of the justification is defective, as it leaves out “liabilities,” or contingent obligations. But in the absence of any evidence to the contrary his affidavit raises a presumption of his sufficiency as security for the costs of the proceeding. The approval of the bond will not prevent the district court from requiring further security, should occasion therefor appear. It follows that the county attorney should approve the papers tendered by the plaintiff as to form, and that the county clerk should file them and approve the bond. The county superintendent is made a defendant, and an order is asked that she be required to appoint appraisers. This duty, however, under the present law seems to devolve upon the county commissioners. (Laws 1913, ch. 274, § 1.) To prevent any possible misapprehension it should perhaps be stated that nothing is here decided beyond the mere right of the plaintiff to institute a proceeding in which his claims may be passed upon in the manner provided by the statute. This decision confers upon him no right with respect to the possession of the land, nor does it in any way adjudicate his claims in regard thereto. The suggestion may also be made, for whatever bearing it has on the matter, that the principle upon which the court {in Winters v. Myers, ante, p. 414, decided at this sitting) holds a part of the “island” act of 1913 to be unconstitutional — namely, that the legislature can not give to individuals land owned by the state — does not apply to a gift made to a municipal corporation for public uses. On the grounds stated the plaintiff is held to be entitled to have his papers filed, and to the allowance of a peremptory writ.	[ 116, -20, -12, 61, -54, -32, 40, -72, 75, -95, -27, 115, 109, 74, 4, 49, 122, 127, 101, 121, -58, -74, 7, 99, -14, -13, -39, -43, 49, 89, -28, 86, 76, 32, -54, -43, 70, 106, -121, 92, -50, -123, -117, -51, -39, 64, 48, 99, 96, 75, 53, -113, -13, 41, 24, -61, 105, 44, -37, -87, 80, -72, -97, -49, -1, 0, -79, -122, -40, 1, 104, 46, -112, 49, 5, -24, 115, -74, -122, 116, 77, -71, 40, 102, 99, 3, 93, -17, -72, -104, 15, 52, -115, -90, -110, 25, 107, 97, -106, -35, 121, 16, 6, -14, -20, 5, 92, 108, 11, -114, -42, -95, -49, 120, 8, 3, -61, 33, 16, 113, -51, -13, 92, 113, 16, -101, -113, -80 ]
The opinion of the court was delivered by West, J.: The plaintiffs sued for a commission for an exchange of certain land owned by the defendants for a stock of hardware and other properties connected therewith. They alleged that in effecting the exchange they acted as agents for the other parties also with the knowledge and consent of each. The answer alleged in substance that the plaintiffs acted solely for the owner of the hardware .stock in making the exchange, and that it was understood and agreed that they should look to him for their commission, and that the defendants did not promise to pay the plaintiffs anything. It was testified that Snyder, the owner of the hardware stock, agreed to pay the plaintiffs' $500 for making the transfer unless' they acted also for the defendants, in which case he agreed to pay $250; that he was not told that they were acting as agents for the defendants, and nothing was said about that, and the question never came up; also that the statement was made that they were not representing the defendants; that after the deal was closed Snyder paid $150 and declined to pay more until it was ascertained whether the plaintiffs were acting for the other side; that nothing was kept from Mr. Snyder; also the fact of the dual agency was not made known to him until the exchange had been made; that two of the defendants stated during the progress of the negotiations that Mr. Hoffhines would be taken care of, and that one of them said later that he would be given goods from the hardware stock. The jury returned a verdict for $330, one-half of the amount sued for, and in answer to special questions found that the exchange was made; that Snyder was willing that the plaintiffs should represent the purchaser of his hardware stock, and agreed that their commission should be reduced to one-half if they did so represent the purchaser; that the plaintiffs did not inform him that they were acting for the defendants ; that the defendants did not agree to pay the plaintiffs any commission; also, that one of the defendants was represented by another company, and that the plaintiffs acted for some of the defendants. Aside from the question of dual agency these findings together with the general verdict fairly mean that the plaintiffs were instrumental in effecting the exchange and aré entitled to compensation therefor, although another agency had a part in the deal and although no express promise to pay a definite sum was proved. It appears that the plaintiffs raised the price asked by the defendants for their land $12.50 an acre to their client Snyder, and afterwards called on the defendants to divide this increased amount with them. Recently the matter of dual agency when the interests of the principals, are not and when they are conflicting has been thoroughly considered in Wilson v. Insurance Co., 90 Kan. 355, 133 Pac. 715, and in Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, in Rinebarger v. Weesner, 91 Kan. 303, 137 Pac. 969; and in Crawford v. Investment Co., 91 Kan. 748, 139 Pac. 481. In the latter the rule was stated that in order to recover compensation from either principal the agent must make a full disclosure of his dual agency “and it should appear that knowledge of every circumstance connected with his employment by either was communicated to the other, in so far as the same would naturally affect his action as agent.” (Syl. ¶ 1.) At the close of the plaintiffs’ testimony it not only did not appear that such full disclosure had been made/ but it affirmatively appeared that Snyder did not know that the plaintiffs were acting for the defendants. A demurrer to the plaintiffs’ evidence was overruled, and this is assigned as error. It is insisted that as the answer did not allege fraud as a defense the defendants can not avail themselves of the alleged invalidity of the contract. But it is not the invalidity of the contract declared on by the plaintiffs but the invalidity of their acts which presents’ the difficulty. They alleged that “they acted as agents for said defendants and also for said Stanley Snyder with the knowledge and consent of each,” and under the rule in the Crawford case it was essential to prove at least this allegation before any right to recover could be shown; and having entered a general denial the defendants certainly had the right to challenge their adversaries’ evidence for failure to show such mutual knowledge and consent. While the evidence indicated Snyder’s entire willingness that the agents should act for the defendants also, such willingness did not clothe them with power thus to act unless such dual relation was fully known to both parties and had their free consent. In other words, the task of representing two antagonistic parties, who would naturally deal at arm’s length and each look carefully out for his own interests if dealing directly, is such a strain on human nature that one who seeks to recover for such representation from either must show affirmatively that both were fully apprised of the situation. Doubtless if the Crawford decision had been rendered before the trial of this case the demurrer would have been sustained. Following the rule there laid down we think the plaintiffs’ evidence failed to show any right to recover. The judgment is therefore reversed with directions to sustain the demurrer and to render judgment for the defendants.	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The opinion of the court was delivered by Benson, J.: This appeal is from a judgment against the plaintiff, who claims to be a settler upon an island in the Arkansas river, which he seeks to purchase as school land. The land in controversy is situated between the-banks of the river as meandered in the United States survey. The north meandered bank is nine feet above the bed of the river, and the old, channel next to the bank is from one to two and a half feet above the present bed of the river. This land is south of the old bank, and consists of about 56 acres. The defendant owns certain lots situated immediately north of this tract and bounded on the south by the river, according to the government survey. He contends that the tract in question is not an island but is an accretion to his adjoining land. The evidence on the part of the plaintiff tended to prove the formation of an island commencing in a sand -bar about the year 1875, gradually growing to a connection with the north bank of the river. On the other hand, evidence on the part of the defendant tended to prove that the defendant’s land was gradually extended south by accretion until it embraced the land now in controversy. Thus a question of fact was presented, whether the land is an accretion to the shore or an island formed in the bed of the river. The statutes under which the plaintiff made his settlement are chapter 378 of the Laws of 1907 (Gen. Stat. 1909, § 8202), which declared: “That all islands lying in the navigable streams of this state, wherein the title to said islands is vested in the state of Kansas, may be sold according to the procedure for the sale of state school-lands, and the proceeds of such sale shall become part of the permanent school fund.” The statute was amended by chapter 295 of the Laws of 1913, which provides that: “Section 1. All islands existing in the navigable streams of this state and being actual islands therein at any time within twenty years prior to the taking effect of this act and not theretofore surveyed under the authority of the government of the United States, and entered under the laws thereof relating to the sale and disposal of public lands, and to which the title is vested in the state of Kansas, may be sold according to the procedure for the sale of state school' lands; provided that any person who has heretofore settled upon any such island or any part thereof, under the provisions of the said act to which this is amendatory, but who has not made proof and received a patent therefor from the state of Kansas, or any person who may hereafter settle upon any such island or any part thereof, under the provisions of this act, shall at h's own expense have an accurate survey of the lands intended to be appropriated by him under such settlement, made by the county surveyor of the county in which such land is situated. . . . “Sec. 2. Any person who has heretofore settled, or shall hereafter settle upon any such island or a part thereof, for the purpose of purchasing the same as school land, shall within four months after such locating and settlement, or within four months after the taking effect of this act, present his or her affidavit of such settlement, and the plat of survey, and statement and receipt of the county surveyor as provided in section 1 hereof, to the county clerk of the county in which such island is situated, and shall at the same time furnish a bond running to the state of Kansas, signed by one or more sufficient sureties to be approved by the said county clerk, conditioned that such settler shall pay all costs and damages that may be awarded against him or her in any of the subsequent proceedings relating thereto, in case it shall be finally determined that such claimant was not entitled to purchase such tract as school land.” Here follow provisions for an examination of the bond by the county attorney, notice of the settlement and claim to be given by the county clerk by publication at the settler’s expense, to adverse claimants who may protest setting up their claims to the land, upon giving bond for costs. The filing of such protest and bond is deémed an appeal, whereupon the county clerk certifies the papers to the district court, where the causé is docketed and stands for trial as an action between the settler as plaintiff, the protestant as defendant, and the state as intervenor, provision being made for intervention by the attorney-general or county attorney, who is required to appear and protect the interests of the state, which is to be considered as a party bound by the final judgment. The statute further provides: “The word ‘island’ as used in this act, means and shall be held to be a tract of land which is entirely surrounded by the current of the stream in which it is situated when at its ordinary low'stage, and any islands which have been formed and attached to the land or banks along such streams, and which have not been islands as herein defined during the twenty years last past, are hereby declared to be accretions to and belonging to, and parts of the lots and lands to which they have become attached.” (Laws 1913, ch. 295, § 9.) The plaintiff had settled upon the land before the passage of the amendatory act, but it is admitted that he has also complied with all its requirements. The procedure provided by that act was followed. The defendant filed a protest on the ground that he owned the land, and that it was not subject to settlement and sale as school land. The cause was docketed and tried as an ordinary action. The county attorney filed an intervening petition, and appeared at the trial, but the nature of his contention is not shown in the abstract. The district court placed the burden of proof upon the plaintiff over his objection. The verdict was for the defendant. The judgment is: “That the defendant James Myers is the owner of and entitled to the immediate possession of all of said lots numbered 1 and 5 and 2 and 3 of section numbered 33, township 23, range 5, Reno county, Kansas, which lots extend down to the present north bank of the Arkansas river, and that the tract of land settled upon by the plaintiff F. W. Winters, as island land in said Arkansas river, is not island land and is not subject to settlement, and that the said F. W. Winters by settlement thereon has acquired no interest in said land whatever; that the state of Kansas has no interest in said land; that all of said land was settled upon by the said F. W. Winters as an accretion to the land of James Myers. “It is further adjudged that the said.F. W. Winters and the state of Kansas be barred of any right, title or interest in and to said land; that the cost of this action, taxed at $-be adjudged against the plaintiff, the said F. W. Winters.” Error is assigned upon the order placing the burden of proof upon the plaintiff, and also upon instructions given and refused. As the statute provides that the settler shall be the plaintiff and the adverse claimant the defendant, it may be fairly inferred that the legislature intended that the burden should be upon the plaintiff, as the court held. The alleged errors in giving instructions and in refusing to give those requested by the plaintiff present the vital question in this case. Following the statute of 1918, the district court instructed the jury that: “Under the laws of the state of Kansas the Arkansas river is a navigable stream and the law of Kansas provides that all islands existing in the navigable streams of this state and being actual islands therein at any time within twenty years prior to February 24, 1913, not theretofore surveyed under the authority of the government of the United States, and entered under the laws thereof relating to the sale and disposal of public lands and to which the title is vested in the state of Kansas, may be sold according to the procedure for the sale of state school lands.” The court further instructed that: “The word ‘island’ means a tract of land which is entirely surrounded by the current of the stream in which it is situated when at its ordinary low stage. “The law further provides that any islands which have been formed and attached to the land or banks along such streams, and which have not been islands as above defined during the twenty years, prior to February 24, 1913, are declared to be accretions to and belonging to and parts of the lots and lands to which they have become attached.” The contention of the plaintiff is, first, that by the act of 1907 islands in navigable rivers were set apart to the school fund, and could not be afterwards taken from it, because of the constitutional restriction against diminishing that fund; and second, that even if that restriction does not apply, still, the islands being property of the state, the legislature has no power to give them to the owners of adjacent lands, as the amendatory act in effect attempts to do, where they have been attached to the bank for twenty years. That islands, according to the usual accepted meaning of that term, formed in navigable rivers since the admission of the state into the Union, were the property of the state, and remained so when the act of 1907 was passed, can not be doubted. “In Kansas the title to the bed of a navigable river is vested in the state; private owership in bordering land extends only to the river’s margin. . . . “New formations arising from the bed of a river belong to the owner of the bed, and new formations added to á bar or an island in the channel of a river by the process of accretion or reliction belong to the owner of the island or bar.” (Fowler v. Wood, 73 Kan. 511, 85 Pac. 763, syl. ¶¶2, 5.) If islands were set apart as school lands by the act of 1907 and added to the lands granted by the United States for the support of schools, then they must, under the provisions of section 3 of article 6 of the constitution, be inviolably appropriated to that use. The court, however, is divided upon the question whether they were so set apart, and we procéed to consider whether these islands, even if not appropriated beyond recall to the support of common schools, are subject to disposition in the manner provided by the act of 1913. By that act an island, although once the property of the state, if it had been attached to the shore during the twenty years preceding its passage became the absolute property of the owner of the shore land, by being declared an accretion to that land, whether it was in fact so or not. Thus it appears that if the act be effective in this respect the state must lose, and the riparian owners gain, all the islands to which the statutory conditions apply. Is legislative power adequate to accomplish this ? It must be remembered that patents from the United States conveyed land only to the bank of the river. Beyond the bank grantees obtained no title to the bed of the stream or islands arising out of it. Whatever title the defendant may have in the tract in contro versy, if it ever was an island, is derived solely from the act of 1913. The mere fact that the riparian owner’s land joins that of the state gives him no title to that land or anything formed or growing upon it. (Wood v. Fowler, 26 Kan. 682; Kregar v. Fogarty, 78 Kan. 541, 96 Pac. 845; State v. Nolegs [Okla.1914], 139 Pac. 943; Stevens v. Paterson and Newark R. R. Co., 34 N. J. Law, 532.) The title of the state in such cases is thus defined in The State, ex rel., v. Akers, ante, p. 169, 140 Pac.-: “Upon her [Kansas] admission [into the Union],' absolute property in and dominion and sovereignty over the soils under the navigable and public streams within its limits passed to the state, in trust for all the people, subject to the superior- rights of the federal government with respect to navigation.” (Syl. ¶ 3.) It- is suggested by the defendant that, having been attached to the main land for twenty years, many difficult questions of evidence might arise as to what part of the accretions belonged to the main land, which evidence must be confined to the memory of living witnesses, and that in view of expense and other difficulties the legislature, to promote the general welfare of the state, might settle these questions once for all and declare that the title to the land should attach to that of the riparian owner after actual connection for twenty years. The proposition that to avoid trouble in maintaining its right the state should surrender to a small number of its citizens valuable property held in trust for all is not persuasive. It must be remembered that this cession is not for public purposes, such as highways or parks, but for purely private benefit and without recompense. These considerations, however, relate only to the wisdom of the law, and the question is simply one of legislative power. If the act is within the power of the legislature it must be obeyed. The act does not furnish an authority for sales to riparian proprietors to the exclusion of other purchasers, but provides for relinquishment of the title to them without any consideration. It is true that the relinquishment or gift provided for is upon the condition that the land had been attached to the shore for twenty years, but when that fact exists the gift is absolute. If the power existed it might have been exercised without the condition. If it did not exist, the condition can not supply the authority. The question therefore remains, whether it is in the power of the legislature to so transfer the title; in other words, to give the islands to the riparian owner. In answering this question we must start with the well-established principle that the statute is valid unless it is in contravention of some express inhibition of the constitution, or one necessarily implied from some express affirmative provision of that instrument. (Prouty v. Stover, Lieut. Governor, 11 Kan. 235; In re Holcomb, Petitioner, &c., 21 Kan. 628; Riley v. Garfield Township, 58 Kan. 299, 49 Pac. 85; The State v. Kelly, 71 Kan. 811, 81 Pac. 450; Wulf v. Kansas City, 77 Kan. 358, 94 Pac. 207; The State v. Weiss, 84 Kan. 165, 168, 113 Pac. 388.) Turning to the constitution, we find in section 2 of the bill of rights this provision: “All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit.” The same language is found in the Ohio constitution, and it is similar to a clause in the fourteenth amendment to the federal constitution. In Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, 664, the suggestion that the bill of rights was a compilation of glittering generalities was disapproved. It was held: “The bill of rights is something more than a mere collection of glittering generalities; some of its sections are clear, precise and definite limitations on the powers of the legislature and all other officers and agencies of the state; and while others are largely in the nature of general affirmations of political truths, yet all are binding on legislatures and courts, and no act of the legislature can be upheld which conflicts with their provisions, or trenches upon the political truths which they affirm.” (Syl. ¶ 1.) The same subject is referred to in Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80. In State of Ohio, ex rel., v. Ferris, 53 Ohio St. 314, 41 N. E. 579, 30 L. R. A. 218, it was held that the same provision of the Ohio constitution invalidated exemptions provided in an inheritance tax law of that state. That decision is cited to illustrate the broad application of this provision in that state, although it was not followed in construing our own inheritance tax law in The State, ex rel., v. Cline, 91 Kan. 416, 137 Pac. 932. The opinion in the Ferris case also refers to the similar clause in the fourteenth amendment to the federal constitution, and observes that the clause referred to is no broader than that contained in the Ohio constitution. In Black v. State, 113 Wis. 205, 89 N. W. 522, 90 Am. St. Rep. 853, also an inheritance tax case, Justice Winslow uses the following vigorous language in referring to a still more general provision of the constitution of Wisconsin: “This may be said to be somewhat vague and general — somewhat in the nature of rhetorical flourish; but when it is said that all men equally free have the inherent rights of life, liberty, and the pursuit of happiness, it is certain that it is not meant that some have or may have greater privileges before the law than others. The phrase must mean equality before the law if it means anything. “The idea is expressed more happily in the fourteenth amendment, where it is said that no state shall deny to any person within its jurisdiction the ‘equal protection of the law.’ A tax law which makes unjust discrimination — which taxes one person at one rate, and another one, within the same class and under like circumstances, at another rate, or exempts him alto gether — denies the equal protection of the laws. This must be self-evident. There may indeed be classification; and if the classification be founded upon real differences, affording rational grounds for a distinction, such classification will not violate the rule of uniformity and equality. So, also, there may be exemption, but the exemption must be reasonable in amount, and founded, also, on rational grounds.” (p. 219.) Thus it appears that in the opinion of the Wisconsin and Ohio courts such general provisions are not mere statements of a general policy, but declaration of affirmative principles which restrict the power of the legislature. In Hume v. Rogue River Packing Co., 51 Ore. 237, 83 Pac. 391, 31 L. R. A., n. s., 396, it was held that an exclusive right of fishing could not be granted to a shore owner in the tideland in front of his property when the constitution provided that “no law shall be passed granting to any citizen privileges or immunities which upon the same terms shall not equally belong to all citizens.” (Const, of Oregon, art. 1, § 20.) While this language is quite specific, it only guarantees that “equal protection and benefit” of the law pro- ■ vided for in our bill of rights. The court said: “So far as this act attempted to vest in the upland or tide land owner the exclusive right to fish in the waters of Rogue River, which was formerly enjoyed and possessed by the public as of common right, we are of the opinion that it would be inoperative and void, as coming within the prohibition of the constitution. . . . Hence the grant to one of an exclusive right to fish would not only create a monopoly in one citizen by taking from others a right of citizenship, but would destroy by the same act a right of property vested in each.” (p. 259.) In Illinois Central Railroad v. Illinois, 146 U. S. 387, a statute of Illinois granting to a railroad company title to submerged lands adjoining the lake front in Chicago was held invalid. The opinion discussed at great length the title of the state in the beds of navigable waters and the rights that individuals and railroad and navigation companies may obtain therein. The doctrine that the state holds the title in such cases in ti;ust for the public was affirmed, and it was said: “The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, can not be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein, or can be disposed of without any substantial impairment of the public interest in the lands and waters remaining. It is only by observing the distinction between a grant of such parcels for the improvement of the public interest, or which when occupied do not substantially impair the public interest in the lands and waters remaining, and a grant of the whole property in which the public is interested, that the language of the adjudged cases can be reconciled. . . . The state can no more abdicate its trust over property in which the whole people are interested, like navigable waters and soils under them, so as to leave them entirely under the use and control of private parties, except in the instance of parcels mentioned for the improvement of the navigation and use of the waters,' or when parcels can be disposed of without impairment of the public interest in what remains, than it can abdicate its police powers in the administration of government and the preservation of the peace.” (p. 453.) A note at page 488 of volume 76 of the American State Reports, quoted in the Akers case, ante, pp. 169, 205, states the same proposition in forcibly terms. Cases affirming the same principles are cited in volume 8 of the Encyclopedia of United States Supreme Court Reports, title, Navigable Waters. There is, however, a distinction between grants which abdicate the control of navigation and other public uses, such as fisheries and the like, and grants of land held for other purposes which would not have that effect, and this dis tinction is referred to in Illinois Central Railroad v. Illinois, supra. Questions similar to those discussed in the opinion from which we have just quoted, and the note referred to, have been considered in Wisconsin. In deciding the effect of a statute purporting to provide for the drainage of a navigable lake, but which it appears would, if valid, transfer title to submerged land to individuals, it was said in Priewe v. Wisconsin State Land & Imp. Co., 108 Wis. 537, 79 N. W. 780, 74 Am. St. Rep. 904: “The legislature has no more authority to emancipate itself from the obligation resting upon it which was assumed at the commencement of its statehood, to preserve for the benefit of all the people forever the enjoyment of the navigable waters within its boundaries, than it has to donate the school fund or the state capítol to a private purpose. . . . The navigable waters of the state belong to the state, and the lands under them, in all situations, so far as are necessary to preserve inviolate the common right to enjoy those incidents which were not the subj ect of private ownership in navigable waters at common law.” (pp. 549, 550.) A like conclusion was reached in Illinois Steel Co. v. Bilot & Wife, 109 Wis. 418, 430, 84 N. W. 855, 85 N. W. 402, 83 Am. St. Rep. 905. Many other decisions to the same effect might be cited, resting, however, upon the same principle, viz., that the trust upon which such submerged lands are held for the public purposes of navigation, fisheries and the like, can not be relinquished to individuals, at least not without some equivalent public consideration. As decided in the Akers case, the state also holds the title for the benefit of all the people respecting the sand deposits. The principle may be extended to any other like beneficial purpose to which the river, its bed, or islands may be devoted. If it is not necessary to hold an island in the interest of navigation, and it remains subject to disposition, all the people have an interest of the same nature in the proceeds that they would have if the land itself were necessary to facilitate navigation. The reason the islands may be disposed of as school lands is that they may be thus made available for public benefit, but in this disposition the state necessarily holds the proceeds by the same title as it held the property. This principle was recognized by the legislature in an act relating to the sale of sand and other natural products (Laws 1913, ch. 259, § 5), wherein it is provided that “moneys which are derived from the sale of property taken from school land islands, . . . shall inure to the benefit of the permanent school fund.” The trust is preserved by transference to the proceeds. A disposition which precludes the possibility of proceeds is an abdication of the trust — a legal impossibility. It will not be claimed that the legislature could apply money in the treasury to a use not in any sense public, but for purely private benefit resting upon no legal or equitable right. If that could be done the loss could be made good by taxation, and by indirection taxes might be levied upon all for the benefit of one having no claims upon the public bounty. In The State, ex rel., v. Osawhee Township, 14 Kan. 418, it was held that an act authorizing the issuance of township bonds for the purchase of seed wheat for distribution in districts where there had been a recent failure of crops was beyond legislative power because it would result in taxation for other than public purposes, although the right of taxation for the support of the poor was conceded. Upon the same principle an act of the legislature of this state authorizing municipal bonds to aid a manufacturing enterprise was held unconstitutional. (Loan Association v. Topeka, 87 U. S. 655.) The court, by Mr. Justice Miller, said: “To lay with one hand the power of the government on the property of the citizen, and with, the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms.” (p. 664.) In Lowell v. Boston, 111 Mass. 454, 15 Am. Rep. 39, it was held that a legislative act authorizing the issuance of bonds, the proceeds to be loaned to the owners of lands the buildings upon which had been destroyed in the great fire of 1872, was contrary to various provisions of the constitution of that state, resting essentially upon a preceding declaration of rights which stated that: “Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.” (p. 461.) There is no real difference in principle between the transfer by taxation of the money of all the people to private benefit, and the transfer of public property by legislative enactment for like private benefit. Indeed the first proposition may be the more meritorious for the taxation referred to is usually attempted in the belief that the aid thereby rendered will result in public ' benefit, as in the cases cited, by contributing to the production of crops after a general failure; to the increase of trade and manufacture; or to the restoration of buildings greatly needed in continuing the business of a metropolis. A statute which has the effect of thus transferring the property of all the people, without compensation or public advantage, to a few, denies that equal protection and benefit to the people for which government is instituted, as declared in the bill of rights. Equal protection is defeated by a gift of that which belongs to all as effectually as by compelling a contribution from all, which, as we have seen, the authorities do not permit. While this protection is usually sought by the few against the many, no reason is perceived why it may not be invoked in behalf of the people at large against legislation which would bestow their property upon the few. This provision' of the constitution, as we have seen, while declaring a political truth, does not permit legislation which trenches upon the truth thus affirmed. To this extent at least it must, like other constitutional provisions, be interpreted with sufficient liberality to carry into effect the principles of government which it embodies. (The State v. Sessions, 84 Kan. 856, 115 Pac. 641, 22 Ann. Cas. 796.) It is concluded that section 9 of chapter 295 of the Laws of 1913, if held to be operative would have the effect to transfer islands which are the property of the state, held in trust for the benefit of all the people, to the riparian owner without compensation, and is therefore unconstitutional. It follows that the instructions which declared the law to be as stated in the section referred to were erroneous. Whether the tract in controversy is an island remains to be determined as a question of fact upon proper instructions. The judgment is reversed and the cause remanded with directions to grant a new trial.	[ -12, -18, -108, 60, 26, -28, 120, -110, 73, -77, -28, 83, 109, -37, 5, 121, -25, 77, -48, 120, -25, -74, 27, -64, -112, -5, -7, -35, -72, 93, -26, -42, 72, 32, -54, -43, 70, -64, -63, -36, -114, 7, 10, 77, 91, 74, 52, 111, 98, 10, 53, -113, -13, 41, 25, 67, -119, 44, -117, -84, 1, -8, -86, -34, -1, 20, 33, 37, -110, 1, 72, -82, -48, -79, 0, -24, 127, 34, -122, -12, 15, -103, -87, 98, 103, 17, -4, -17, -72, 8, 46, -33, 45, -26, -106, 72, -30, 100, -97, -99, 117, 4, 7, 114, -29, -116, 91, 108, 7, -101, -14, -79, -49, 60, 17, 3, -29, 3, -80, 96, -58, -30, 93, 85, 48, -101, -113, -4 ]
The opinion of the court was delivered by BURCH, J.: The action was. one to recover damages for injuries to the plaintiff resulting from a defective highway. The plaintiff recovered, and the defendant appeals. The plaintiff was seated in a buggy, driving a single horse eastward toward her home. The highway ran for some distance along the north bank of a creek. The south side of the highway was supported by a stone wall some two hundred feet lpng, varying in height from one to five feet, and by an earth wall extending about one hundred feet further. At the place in controversy the stone wall was two and one-half or three feet high. From the foot of the wall downward the bank was steep, and the perpendicular distance from the top of the wall to the creek was about eleven and one-half feet. The sloping bank was rocky and rough. Trees grew upon it with branches overhanging the wall. From a photograph admitted to be correct it appears that the wall was overtopped by undergrowth. The traveled portion of the highway was twenty-two feet in width, was. smooth, and was level with the top of the wall, which was hot marked or protected by a barrier of any kind. The plaintiff met an automobile coming from the east, and when near it her horse suddenly shied and backed over the wall. The buggy turned upside down, the horse landed on top of it, and the plaintiff was thrown or tumbled farther down the declivity. The incident occurred on November 27, 1911. The testimony given at the trial by the township trustee is abstracted as follows: “During the fall before Mrs. Sims was hurt, we, the board, under my management, had graded up the road by cutting away the bank on the north side and putting earth over on the south side. The retaining wall seemed to settle down a bit along there and we put more dirt in to make a level road. I knew there was no barrier on the south side of the roadway. I knew that for several weeks before this injury. We had not done anything to prevent horses from shying or backing over the rocks on the south side of that road. It was left entirely exposed and unguarded. “I was entirely familiar with the road and had knowledge of its condition.” The defendant insists that the highway was not defective, and embodies in its argument a quotation contained in the opinion in the case of Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554, which reads as follows: “ ‘That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, can not, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.’ ”' (p. 6.) It is not possible for the court to declare as a matter of law that an occurrence of the kind under consideration was not naturally to be anticipated and that reasonable prudence did not require a barrier to be placed along this wall, or other measure be taken, to protect users of the highway from injury. The question was one of fact for determination by the jury, and in the opinion of the jury and of the trial court the highway ■was defective and dangerous and the township was negligent in maintaining it in the condition which confronted the plaintiff. It is said that the trustee’s familiarity with the road and knowledge of its physical condition did not constitute notice of a defect within the meaning of the statute imposing liability on the township. The cases of McFarland v. Emporia Township, 59 Kan. 568, 53 Pac. 864, and Hari v. Ohio Township, 62 Kan. 315, 62 Pac. 1010, are cited. In the McFarland case the side of a highway along a river bank was protected by a fence, and the attention of the trustee was not directed to any insufficiency of the fence as a barrier. The court said that under ordinary circumstances it would seem that the fence would be ample warning to keep persons driving along-the road from running off the bank and to check horses until they would see and avoid the danger. What it was that impelled the horses to run over and break down the fence was a mystery which had not been explained. The township trustee was not bound to guard against all possible contingencies and improbable conduct, but only such dangers as he was notified of; and the conclusion was that the knowledge he had was not equivalent to the statutory notice. In the Hari case the distinction was drawn between constructive notice, or notice inferred from conditions open to observation for a considerable period of time, and actual notice derived from information or observation. Here the trustee had full actual knowledge, obtained from personal observation made while repairing-the road at the identical place a few week’s before the plaintiff was injured. There was no fence at all, or other barrier, to put a driver on guard or to restrain a startled horse. • In the ordinary course of events injury was reasonably to be anticipated from leaving-the stretch of road along the retaining wall altogether unprotected. To those upon whom rested the duty of' keeping the highway free from defects the conditions themselves fairly spelled danger, and knowledge of the conditions was knowledge of a defect in the road. It is said that absence of a barrier along the road was not the proximate cause of the plaintiff’s injury, and the case of Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416, is cited. In that case it was said: “It is entirely plain that had the mules not become frightened and had they not also got beyond the driver’s control, the wire would have had no possible connection with the most regrettable injury. The party placing the wire four feet and four inches from the pole in the grassy embankment north of the traveled portion of the road can not be held to have foreseen that a team might become frightened twenty rods east thereof and run upon the embankment.” (p. 765.) The present case is governed by that of Mosier v. Butler County, 82 Kan. 708, 109 Pac. 162 (distinguished in the Eberhardt case), where it was said: “There is a further contention that the defective condition of the bridge was not the proximate cause of the injury, for the .reason that the horse was frightened at the pile of stone in the highway. In support of this the defendant relies upon the well-known principle that if two distinct causes are successive and unrelated in their operation one of them must be the proximate and the other the remote cause. But the principle has no application here, because it is obvious that the two causes were related in their operation. Notwithstanding the frightening of the horse, the injury would not have resulted if the guard rail had not been defective. One reason why guard rails were necessary was the liability that horses might be frightened while on this part of the bridge, resulting in just such accidents.” (p. 709.) The testimony was that the horse was an old family horse, blind in one eye, well broken, gentle, and considered perfectly safe. The plaintiff had driven him frequently. He always responded to her control, and she never had any difficulty with him. She had driven him by machines (automobiles), and he had never frightened before. He had never frightened at railroad cars or anything while she was driving him, and she had never used a whip on him. She carried no whip. She testified as follows: “I was driving along there on the right side of the road, driving like I always did holding.the reins lightly, when I saw an automobile coming. Suddenly the horse seemed to get frightened and he shied around and backed over the embankment before I had time to do •anything. We went straight over to the best of my remembrance. It was mighty quick. ... I should judge the automobile was within about forty feet of me when the horse took fright. It was coming down the hill toward me. He shied and backed and all was over before I hardly knew anything. No, he did not attempt to whirl around and go in the other direction, just seemed to shy to the right and back and all went over the bank before I hardly knew what was happening.” The driver of the automobile testified that the horse frightened suddenly, that the plaintiff was busy trying to keep him in the road, that she slapped him with the reins to no effect, and that she had no time to signal. He stopped his car as soon as he could after the horse became frightened. In view of this testimony the court declined to submit the subject of contributory negligence on the part of the plaintiff to the jury. The conduct of the horse was quite contrary to what the plaintiff had the right to expect when she started on her journey, and she had no occasion to anticipate that she might need a whip. Although she held the reins lightly, according to her habit, before the horse took fright, grasping them firmly would not have prevented him from taking fright, and after that she made all possible use of them. She had no occasion to signal the driver of the automobile before the horse took fright. After that she had no opportunity to do so, and it would have done no good. The defendant has no other criticism to make of the plaintiff’s conduct, and the action of the district court is approved. • The foregoing observations are sufficient to dispose of the various objections made to the instructions given the jury. The jury returned a general verdict for $2000, and special findings of fact allowing $1000 for pain and suffering and $1000 for permanent injuries. On the hearing of the motion for a new trial two of the jurors sent in affidavits that the verdict was a quotient verdict rendered under an agreement made in advance to abide by the result of the addition and division. Three jurors made affidavits emphatically denying the existence of any such an agreement and six others were examined and cross-examined orally to the same effect. The testimony of the twelfth juror was not obtained. One juror testified as follows : “Q. Now tell us how that verdict of $2,000 was arrived at. A. Well, someone spoke, if I remember right about how we would start, and he said we could n’t give her what she asked because it was too much, and then someone said if we would all put down the amount we thought was best, and add them up and divide by twelve it might give us some basis to start on and see how near we could come together, and we did that. I forgot what the amount was, but it was over $1900.00 and after that if I remember right, someone moved that we give her $2,000.00 and we took a vote on that and it was unanimous.” Another juror testified as follows: “We were all in favor of damages, but the amounts run from $500.00 to $3,500.00 and then they finally cast another ballot and then it was added up and divided by twelve, and when they counted it up it was $1,983 and some cents, if I remember right. Then the foreman wanted us to get together, and he rose up and he says ‘All of you who are willing it should be $2,000.00 stand up, or raise your hands’ — I forget which it was, and we voted on that, and we all voted $2,000.00, and then he said ‘Is that your verdict?’ and we all said yes. He says ‘Are you all willing to vote $2,000?’ and they all. agreed to it, and that was the verdict, and that man Thummel was the first man to say T am satisfied.' Now gentlemen that is the way I understood it.” Answering the court, another juror testified as follows : “Someone suggested the adding and dividing, but I do not know who. We had balloted on the condition of the road but not on the amount; I think we had discussed the amount; I think somebody had suggested some amount and the foreman said, ‘Gentlemen let each and every one of us put down on a ballot what we think she ought to have,’ and we did so. The reason he gave was to get together and see where we stood; how each one stood; it rsulted in $1983. “Q. Why did not you leave the verdict right there? A. Well, we were not voting for the damage then.” The trial court made no finding that there was an agreement in advance that the quotient should be the verdict of the jury, as occurred in the case of Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252, and approved the verdict under the authority of the case of Campbell v. Brown, 85 Kan. 527, 117 Pac. 1010. The following paragraph from the opinion in the Campbell-Brown case is applicable to the method by which the amount specified in the general verdict was reached. “While this proceeding apparently included but little, if any, real discussion as to the reasons for allowing-any given amount, and is not to be commended, still as verdicts are usually to some extent the result of comparison of views and compromise, we are not able -to say that the one under consideration was such as must be set aside (City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 222), and our attention is called to no authority requiring such a holding.” (p. 535.) No attempt was made to impeach the special findings of the jury, and for all that appears in the abstract the whole subject-may have been canvassed when they were agreed to. The judgment of the district court is affirmed.	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The opinion of the court was delivered by Mason, J.: In a petition for a rehearing it is suggested that the evidence (some of which is not abstracted) shows that Elkins was appointed á deputy sheriff at his own request, to assist in discovering and arresting the murderer. This can not be the case, as the appointment was made October 9, 1909, and the murder was not committed until October 19, 1909. It is also suggested that the opinion states as facts certain matters concerning which there was a conflict in the evidence. The statement made was that there was evidence tending to establish these facts — there was no purpose on the part of the court to treat them as established. The jury must, of course, be the judge of the facts, but there is abundant evidence to support the conclusion that each of the claimants rendered effective serv ice in bringing the offender to justice, and the case is one where a division of the reward suggests itself as the most equitable solution of the problem. The petition for a rehearing is denied.	[ 112, -24, -20, -84, 43, -32, -86, -8, 64, -93, 116, 115, -83, -53, 16, 105, -101, 95, 85, 105, -33, -73, 22, 65, -6, -13, -45, -41, 53, -20, -12, 124, 76, -80, 2, -47, 102, 106, -59, -46, -114, -91, -72, -59, -16, 16, 48, 54, -14, 15, 117, -98, -93, 42, 24, -61, 105, 44, 91, 63, 80, 112, -98, -123, 109, 18, -77, 54, -34, -89, 88, 46, 24, 49, 0, -24, 113, -90, -124, 84, 101, -71, 8, 98, 98, 5, 93, -23, -88, -88, 62, 62, -115, -89, -103, 64, 75, 105, -106, -39, 125, 116, 46, 116, -28, 85, -44, 100, 13, -97, -106, -79, -35, 62, -106, 43, -53, -127, 18, 113, -51, -14, 92, 69, 81, -37, -108, -112 ]

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