ance of adoption papers.

mained. John F. Forsyth died on February 6,, child could not be expected to see to the issu1907, but prior to his death he conveyed all of his property to Jane Forsyth, his wife. Jane Forsyth died on April 26, 1913, leaving a last will and testament, which has been admitted to probate in this court, in which no provision was made for plaintiff, and the said Jane Forsyth bequeathed to other parties the property that came to her from her husband, the said John F. Forsyth.

"The evidence in this case shows that John F. Forsyth, Jane Forsyth, his wife, plaintiff, and his mother called to see Richard Martin, when plaintiff was very small, with reference to having adoption papers prepared and both of the Forsyths stated to him they were there for the purpose of adopting the boy; that his mother gave him to them to adopt, as they had no children of their own, and called the boy theirs. "H. Lund testified the Forsyths said they took the boy to raise; that they took to adopt as their own.

"It also appears that first one and then the other of the Forsyths stated to disinterested parties that plaintiff was their boy; they had taken him to adopt, and even went so far as to say they had adopted him; also what they had would be his. Then in 1890, when plaintiff was in the custody of his father, they threatened_legal_proceedings in order to regain his custody. The testimony covers a period of 30 years, and it is not likely the witnesses could remember everything that was said during that time.

"The evidence upon which plaintiff relies to prove the alleged contracts consists of admis sions and declarations made by John F. Forsyth and Jane Forsyth, his wife, during their lifetime. The value of admissions as evidence depends on the circumstances under which and to whom and when they were made. Here it appears, when plaintiff was very small, in com

"H. R. Brown testified Mr. Forsyth introduc-pany with his mother and John F. Forsyth and ed plaintiff to him as his son.

"Ross Peterson testified of Mr. Forsyth speaking of plaintiff as his boy.

"Herbert E. Watts testified Mrs. Forsyth told his mother they had adopted the boy.

"William Watts testified he had a conversation with Mrs. Forsyth directly after 1885, in which she said she liked the boy and wanted to keep him as long as he lived and as long as they lived.

"To Mary A. Dickinson the Forsyths referred to plaintiff as their own and said he was there to stay. Both said the boy theirs; had taken him to raise; spoke of how much they thought of him, how handy he was, and how much he could do for them; also that in a conversation with Mrs. Forsyth she said that Mr. Forsyth said the affairs were settled now, and for her to see he was not forgotten; that what was left was supposed to be his; that his wish was for Alex to get the property, and wanted Mrs. Forsyth not to forget him. This was said after Mr. Forsyth's death.

"It appears from the time plaintiff went to the Forsyths he has always gone by the name of Forsyth and always called them Father and Mother. The fact that he was not their son was not mentioned to him, and it does not appear when he first learned they were not his

parents.

"The fact in issue is whether either or both of the contracts alleged in the amended complaint were made. Plaintiff contends he has established the contracts pleaded by him in his amended complaint and the full and faithful performance of all on his part thereof, while defendants contend that no such contract or contracts have been established. It is essential that a contract be established substantially as claimed by plaintiff. Such a contract may be established by circumstances, but these must be strong and satisfactory.

Jane Forsyth, his wife, they called on Richard Martin, who was a notary public, living at Summit, Cal., for the purpose of having him prepare adoption papers; the Forsyths stating they were there for the purpose of adopting the boy who had been given to them by his mother for that purpose. They had no children of their own, and were about 40 years old at the time."

From a reading of the record, as well as from this statement of the evidence, we are of the opinion that no stronger deduction can be made than that a contract of adoption There is no evisimply was entered into. dence tending to show an agreement to the effect that plaintiff should become the owner of whatever property the Forsyths might own at the time of their death. The strongest testimony tending to sustain such a contention was that given by the witness Mary A. Dickinson, to the effect that Mrs. Forsyth said to the witness that Mr. Forsyth had said to Mrs. Forsyth:

"The affairs were settled now, and for her to see he [plaintiff] was not forgotten; that what was left was supposed to be his; that his wish was for Alex to get the property, and wanted Mrs. Forsyth not to forget him.'

But this is not evidence of a contract that he should become the owner of property upon the death of the Forsyths. If it indicates anything, it is simply that Mr. Forsyth thought, in view of the relation which had existed, that plaintiff deserved consideration at their hands. In concluding his opinion, the trial judge said:

"On two different occasions, as it appears from the testimony, the Forsyths were ready and willing to have the necessary and proper adoption papers taken out, and plaintiff's par ents should have seen to it that it was attended to. A little attention to the matter then on their part would have avoided the trouble and litigation at this date, and the reason given by plaintiff's mother when she found it would be necessary to go to Susanville, Cal., for this puringly, and for costs of suit." pose was that she was postmistress and could not get away, but on the second occasion, in 1890, no sufficient excuse can be offered by the father of plaintiff for not seeing to it and having the matter properly attended to. If plaintiff's parents were in this respect derelict in their duty, would it be right to cause the plaintiff to suffer for their seeming negligence, for in a case like this, where the alleged agreement was for the adoption of a young child, who was taken into the family and raised, the

of this case it clearly appears that John F. "From the testimony introduced on the trial Forsyth and Jane Forsyth, his wife, entered into the contracts with plaintiff's father and mother for his adoption, and that plaintiff is entitled to a specific performance of the same, which entitled him to the property owned by Jane Forsyth at the time of her death, and that findings and decree should be prepared accord

[4] From this it will be seen that the judge based his conclusion that plaintiff was entitled to a decree of specific performance upon the theory that a contract of adoption simply had been entered into, and not upon the theory that he should become the absolute owner of the property of the Forsyths upon their death. The courts are almost unani

MCCARRAN, C. J. I concur in the order "The courts have quite generally held that, in order to enforce the specific performance of a and in the opinion of Mr. Justice COLEMAN. parol contract, it must be clearly and satisfac- This action was primarily an action for torily shown to the trial court as to its execu-specific performance. The cause rested up

"The rules as to the weight of evidence are applied with the utmost strictness to oral contracts to devise the whole or part of an estate. Such contracts are viewed with suspicion by the courts, and must be established by the clearest and most convincing evidence. In ent. these, as in other contracts, one party to which "That William T. Bacon and Harriet G. Mur

witness Mary Dickinson, wherein were recited utterances made by Jane Forsyth some years prior to her demise. It was expressed by the witness thus:

"She said that Mr. Forsyth said that Alex [the respondent] had been very good to them and had spent his time and money on them. The affairs were settled now, and for her to see that he would not be forgotten; that what was left was supposed to be his."

Again and again writers of the law have given expression to the doctrine that specific performance of a parol contract will be decreed only when the contract itself, as well as the terms thereof, have been clearly

plaintiff, Alexander C. Forsyth, was born to them on the 25th day of March, 1882; that after the birth of the said Alexander C. Forsyth, the said William T. Bacon and Harriet G. Mur dock were divorced, and by mutual consent the care and custody of the said Alexander C. Forsyth was given to and assumed by the said Harriet G. Murdock; that thereafter and during the year 1882 the said Harriet G. Murdock was married to Jonathan B. Roberts; that thereafter the said Harriet G. Murdock, with her child, the said Alexander C. Forsyth, visited at the home of John F. Forsyth and Jane Forsyth, now deceased, who then resided on a ranch in Lassen county, state of California, and that the said Harriet G. Murdock left her son, the said Alexander C. Forsyth, with the said John F. Forsyth and the said Jane Forsyth during an illness from which she, the said Har-proven. riet G. Murdock, then Harriet G. Roberts, was In the matter of estates of deceased persuffering; that during such time the said Forsyths, and particularly the said Jane Forsyth, sons especially, courts have zealously guardbecame greatly attached to the said Alexander ed the avenues by which fraud or misrepreC. Forsyth, and desired to keep the boy and sentation might find entrance. Some authoriadopt him as their own child, in and about the ties have gone so far as to say that, where an month of September, 1885, and requested the said Harriet G. Murdock that she give her son oral contract is relied upon, the evidence to to them, the said Forsyths; that the said John establish the same must be overwhelming in F. Forsyth and Jane Forsyth then and there Indeed, it has been asundertook, promised, and agreed to and with its probative force. the said Harriet G. Murdock that, if she would serted by some authorities that such congive them her said son, the said plaintiff, Alex- tracts must be so proven as to leave no ander C. Forsyth, they would adopt him as their Missouri Pac. own son, and promised and agreed that on their room for reasonable doubt. deaths he would become entitled to and inherit Ry. Co. v. McCarty, 97 Mo. 214, 11 S. W. and have all the property of which they might 52. The probative force of the testimony of be possessed at the time of their deaths; that in the witness Mrs. Mary Dickinson, giving evconsequence of such undertaking, promise, and agreement on the part of the said John F. For-ery word thereof full significance, is not, in syth and Jane Forsyth, the said Harriet G. Mur- my judgment, commensurate with the rule. dock gave her said son to the said Forsyths, "What was left was supposed to be his" was with the express intention of improving the condition and prospects of her said son, and they testified to as being the assertion of John thereupon took and kept the said plaintiff, Alex- Forsyth, deceased, repeated to the witness ander C. Forsyth, gave him their own name of by Jane Forsyth. It would require a long Forsyth, had much affection for him, treated and tortious stretch of imagination to conhim as their son, brought him up as their own child, educated him, and introduced him as their vert this language into an expression signifyown child." ing prior established contractual relations.

Section 2 of the complaint recites as to the agreement between the Forsyths and William T. Bacon at a subsequent date; such agreement being of similar import to that averred in the first section.

I have already expressed myself as to the first element of the contract, namely, that of adoption. Assuming that a contract for adoption was established as having been entered into between the Forsyths and the natural parents of respondent, the most that can be said is that as a consequence thereof the right of inheritance would flow to re

It appears to me to be well established by a line of competent evidence that a parol agreement to adopt was made between the Forsyths and the natural parents of respond-spondent. In this, however, he would take ent. The trial court so found, and in this finding he was, as I view it, amply supported by the facts presented. The proof in this respect meets the test. The second phase of the agreement, namely, to leave to respondent the property of which the Forsyths should die possessed, is not supported by the evidence to that degree of cogency required by the rule applicable to such matters, as that rule has been established and maintained by an almost overwhelming line of authority. The strongest element of proof found in the record which goes to support the contention of respondent as to this phase of the agreement is that furnished by the

no greater right than that of a natural child. If Jane Forsyth had died intestate, then as a consequence of the establishment of a contract to adopt the respondent would have become an heir at law to the estate of the deceased. It is established in this case that Jane Forsyth left a will making disposition of the property of which she died possessed. If the contract of adoption had primarily been established as having been entered into between the Forsyths and the natural parents of respondent, respondent could have availed himself of his remedy to establish his heirship. Such, however, is not invoked by an action for specific performance.

STATE ex rel. CASTER et al. v. SOUTH- change and to the one at Lone Elm, which WESTERN BELL TELEPHONE CO.

The dismantling of a direct telephone line between two places does not constitute an objectionable change in a practice pertaining to service, where the company owning it has established another line, although not a direct one, between such places, by means of which all business between them is efficiently handled, without detriment to the public or to individ-pending, to enjoin the enforcement of the uals.

mer practice without obtaining the consent of the commission.

[1] 1. A preliminary question is raised by a motion to quash the alternative writ on the ground that action by this court is precluded by the pendency of the injunction action in the district court, which is somewhat in the nature of a statutory appeal from the order of the commission. The utilities statute provides that an action to vacate an order of the commission may be brought in any court of competent jurisdiction. Gen. Stat. 1915, § 8348. Provision is also made for the enforcement of the order by mandamus (Gen. Stat. 1915, § 8367), but without express reference to the effect of a prior action in another court. The statute creating the Board of Railroad Commissioners provided that, notwithstanding the pendency of an action in the district court to set aside an order of that body, mandamus to enforce it could be brought in the Supreme Court, which was authorized to stay further proceedings in the earlier action. Gen. Stat. 1915, § 8447. The public utilities act contains a section reading as follows:

It has been held that, in an action brought in this court to require a utility to re-establish a service which it had discontinued without the consent of the commission, no inquiry will be made into the question whether the service involved is one which the utility should be or could be compelled to maintain permanently, because that is a matter to be passed upon in the first instance by the commission. State ex rel. v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544. In the opinion in the case just cited it was said:

"Let it be granted, as the demurrer does concede, that the maintenance of a telegraph staAll that was necessary for the defendant to do was to make tion at Syracuse is unprofitable. application to the commission, setting up the facts. It would then be the duty of the commission to verify the facts by proper investigation; and if the alleged facts were true, and no other lawful interest was materially affected, the commission would be bound to grant the application. If the commission failed to do so, the courts are open, and mandamus or other appropriate remedy would speedily redress the telegraph company's situation. But here the telegraph company gave the commission no opportunity to investigate." 96 Kan. 306, 150 Pac. 547.

"All laws relating to the powers, duties, auThe present situation differs materially thority and jurisdiction of the board of railroad from that which was there considered, in commissioners of this state are hereby adopted, this: Here everything bearing upon the quesand all powers, duties, authority and jurisdiction whether the utility should be required tion by said laws imposed and conferred upon the said board of railroad commissioners, relating to common carriers, are hereby imposed and conferred upon the commission created under the provisions of this act." Gen. Stat. 1915, § 8328.

to continue the service or practice involved has been brought to the attention of the commission, and has been considered and acted True, the telephone company upon by it.

has not in so many words asked for leave The defendant insists that by its express to discontinue the practice or service, and terms this section merely vests in the Utili- it has consistently contended (in obvious ties Commission the powers which the Rail- good faith and with considerable plausibiliroad Commission had previously possessed re-ty) that the case is not one in which such lating to common carriers, and that it does not have the effect of making the procedure in regard to orders for the regulation of common carriers applicable to those concerning other public utilities. We think, however, that the first clause of the section, by which all laws relating to the powers of the Railroad Board are "adopted," must be held to mean that all the provisions of the statute with regard to the action of that body, including those relating to the enforcement of its orders, are made applicable (so far as their nature permits) to the new tribunal-the Utilities Commission. Otherwise, where an order of the commission is in litigation, we should have different systems of procedure, depending upon whether a common carrier or some other utility were affected-a situation not in keeping with the obvious spirit of the enactment. Moreover, the view we have taken accords with the policy of the new law in making its remedies cumulative to those already in existence. Gen. Stat. 1915, § 8368. [2] 2. The statute enacted in 1911 provides that:

"No change shall be made in any rule or regulation or practice pertaining to the service or rates of any such public utility * without the consent of the commission." Gen. Stat. 1915, § 8347.

permission is necessary. But the company was made a party to a proceeding formally brought before the commission, in which the issue was whether it ought to be required to re-establish the line between Garnett and Lone Elm. In that proceeding it presented the reasons upon which it based its claim of right to dismantle the line, and the law and evidence bearing upon the matter were fully gone into. It in effect asked the commission to decide that it ought not to be required to continue the service, which is not very different essentially from asking that the commission approve its course, although protesting that it had no authority to do otherwise. The commission, has had the opportunity to consider every aspect of the case upon its merits. Assuming that it was the duty of the company to have kept the line in operation at any expense until it had obtained leave to discontinue it, yet, if the facts establish in a hearing before the commission showed clearly that such permission must necessarily have been granted upon request, it would be allowing considerations of mere form to prevail over those of substance to require the company to rebuild the line as a prerequisite to the commission's applying the law to the facts and declaring