that it had then the right to remove it. Lone Elm, and then destroyed the old one. Such a course could result in no practical There is no complaint of its facilities for benefit to the public, and is not necessary handling all business between these points. to the vindication of the rule that no change in service may be lawfully made without the consent of the commission. In the Postal Telegraph Case the court did not make an unqualified order for the reinstatement of the abandoned service; it directed the issuance of a writ compelling such action only in case the defendant should omit for 30 days to apply to the commission for leave to discontinue the service there involved. Here such a provisional order is unnecessary because all the facts affecting the duty of the defendant in the matter are fully be fore the court, in the form of evidence that has already been considered by the commis sion. re If its present charge is unreasonable, any grievance in that regard can be remedied as well without the re-establishment of the iron circuit as with it, the existence or nonexistence of an additional line does not affect the matter at all. The Utilities Commission is given a revisory power over any "practice or act whatsoever, * lating to any service performed" by a public utility. Gen. Stat. 1915, § 8341. And, as already stated, the statute forbids the change in any practice pertaining to service or rates without the commission's consent. But the commission has no authority to control the action of a utility with respect to details or methods which do not affect the results [3] 3. The defendant maintains that it produced, the service actually rendered, unhad a right to abandon the practice of re- less means are employed which are in themceiving without charge calls from Lone Elm selves objectionable because detrimental to over this line because that practice, inas- interests that are under the protection of the much as it involved giving free service, was commission. If a telephone company subin violation of the statute prohibiting dis- stitutes a new wire for an old one, or a copcrimination in rates. Gen. Stat. 1915, $per wire for a less serviceable iron one, that 8343. The plaintiff argues that the service is not a change of practice pertaining to the was not rendered gratuitously, but was a service to which the commission can rightpart of the benefit the individual subscriber fully object. And the substitution of a longreceived in consideration for the rental heer line of communication for a shorter one paid; the advantage to the local exchange is not objectionable unless the efficiency of the consisting in the increased patronage which service is impaired or some incidental inpresumably resulted therefrom The in- jury results. firmity of this reasoning lies in the facts of the case. The Lone Elm exchange contributed nothing to the building or maintenance of the line. Its subscribers may be conceived as paying it for the use of the wire, but, as none of the money reached the Bell Company, the owner of the property received no return. The defendant cannot be considered as receiving a revenue from the subscribers to the Garnett exchange, because according to its statement, which is consistent with the evidence, the practice referred to did not obtain as to them. The service, having been furnished without compensation in any form, was in violation of the letter and spirit of the statute, and therefore was not one the commission could require to be maintained. [4] 4. So far as the Lone Elm exchange is concerned, the controversy is merely over the rate to be charged-the difference bebetween 10 and 15 cents a message. Such a controversy has no real relation to the maintenance of the line in question. The fact that at present the business done by the defendant between Garnett and Lone Elm goes over the wire through Iola does not affect the matter. So long as the service is efficient -and this is not disputed-it makes no difference to the public whether the wire used follows an approximately straight line or not. The situation is much the same as though the defendant had built a new (and improved) line directly from Garnett to These considerations require the refusal of the writ asked. To avoid a possible misunderstanding, it may be added that it does not follow from anything here decided that, where by mutual arrangement a connection has been established between two or more local exchanges by which their subscribers are brought into communication with each other without charge other than such as is included in the payment of rent, such service may be discontinued (or that an additional charge may be exacted for its continuance) without the consent of the Utilities Commission. The application for a peremptory writ is denied. All the Justices concurring. (102 Kan. 329) Ex parte WRIGHT. (No. 21601.) (Supreme Court of Kansas. Jan. 12, 1918.) (Syllabus by the Court.) STREET RAILROADS 9-SERVICE OF STREET CARS-POWER OF COMMISSION-ORDINANCE. interurban line some 90 miles in length from The Union Traction Company operates an Nowata, Okl., into and through Coffeyville, Independence, Cherryvale, and Parsons in this state, all under one management and from one power house. Over certain branch tracks in the city of Independence are operated four cars for local service, at least one of which is also operated over about three miles of its main track. ordinance requiring these local cars to run to a The petitioner was arrested for violating a city given point on the main line track at specified times. Held, that the power to make this requirement rests exclusively with the Public Utilities Commission. ment as to this matter, and then proceeding to the effect that the company might use certain streets therein named for such purpose Original habeas corpus by Charles Wright. "over and across which to build, construct, Writ granted. Chester Stevens, of Independence, and John J. Jones, of Chanute, for petitioner. Walter L. McVey, of Independence, for respondent. WEST, J. The Union Traction Company operates an interurban car line from Nowata, Okl., into and through Coffeyville, Independence, Cherryvale, and Parsons in this state, and a city line in the city of Independence and a city line in Coffeyville, all directed by the same officers. The local service in Independence covers 4.75 miles of branch tracks, and 3.3 miles of the main line track, the local cars being four in number. The petitioner was arrested for violating an ordinance of Independence requiring the company to operate these local cars to a certain place and at certain intervals, and claims that his restraint is unlawful because of the invalidity of such ordinance; his theory being that the Public Utilities Commission and not the city has sole control over the operation of the traction company's cars. This is the only question in the case. In 1906 the city of Independence passed Ordinance No. 496, granting to the company "a franchise to construct, equip, maintain and operate an interurban electric railway and power plant for manufacturing, furnishing, and distributing light, heat, and power, and for the transportation of passengers and the carrying of freight, mail, and express within, through, over, and along the streets and alleys and public places in the city of Independence, Kan., and for operating such interurban railway and power plant and defining the duties, rights, and privileges hereunder." This ordinance required, among other things, that the tracks should be laid a certain way, of specified material, that the poles should be set in a manner therein indicated and kept painted, and restrictions were made as to the hanging of the wires and the equipping of the railway, the city reserving the right "to reasonably regulate by ordinance the speed of cars within the limits of said city." The company was required within 30 days to file with the city clerk its acceptance in writing of the provisions of the ordinance duly acknowledged and to execute a bond in the sum of $500 to secure the construction and completion of the road within the time named in the ordinance. In 1910 the city adopted a resolution reciting that the company had filed in writing its election to extend its line of interurban railway to or near certain industries near the city, and had asked the mayor and commissioners to agree with it as to what streets or portions thereof it might use, on which to extend its line of interurban rail...ay accordingly, and reciting a certain agree and extend its line of interurban railway, the same to be built, constructed, and operated under and be subject to all the terms and conditions of Ordinance No. 496." The company operates its line running through the cities mentioned as a unit, the main office being at Coffeyville, Kan., and the power plant at Independence, which supplies the power for all the properties of the company. The Independence service here involved is entirely over the interurban line with the same track, trolley poles, and power. The entire length of line including sidings and switches and the like is over 90 miles. The local cars do not make connections with the interurban cars. The bookkeeping of the interurban and local lines is done with the same books and as a part of the same system, but separate accounts are kept. The electrical engineer testified that in the operation no separate statement of his time is made touching the city service separate and apart from that of the interurban service. He was asked whether, if the company should operate a car every 30 minutes from the power house in Independence to the city park, that would interfere with the city service in Coffeyville, and he answered that the system is so arranged that if more load is had than can be carried the parts of it can be disconnected. "In fact it will automatically be disconnected temporarily and in that case the cars in one town might operate and the other cars might be operating under very weak power, or in case of line trouble down this way every car in Coffeyville might be entirely stopped and the cars might be running at normal in Independence." Section 1674 of the General Statutes of 1915 authorizes cities of the second class "to make all contracts, and do all other acts in relation to the property and affairs of the city necessary to the exercise of its corporate or administrative powers." Cities are also empowered to enact all ordinances, rules, and regulations not inconsistent with the laws of the state as may be expedient for maintaining the peace, good government, and welfare of the city and its trade and commerce. Gen. Stat. 1915, § 1704. Section 825 gives cities of the three classes power to issue bonds "for the purpose of purchasing, constructing or extending street railway or telephone service." Section 836 empowers all incorporated cities “into, or through which any interurban railroad may have heretofore been built, or into, or through which any interurban railroad may propose to build a line of interurban railway," to grant franchises "upon such terms and conditions as such city may by ordinance prescribe." This was enacted in 1915, and hence was not in force when the franchise in * * heating or this case was granted, but is quoted from to be completed, and the terms and conditions under which the same shall be constructed." indicate the present powers of the city. Section 8330 defines common carriers to inThis section further provides that upon comclude all street railroads, suburban or inter-plaint being made that the ordinance or resourban railroads, and all persons and asso-lution of such city is unreasonable the Pubciations of persons operating such agencies lic Utilities Commission shall act as a sort for public use in the conveyance of persons or property within this state. Section 8368 (section 40 of the Utilities Act) is as follows: "The rights and remedies given by this act shall be construed as cumulative of all other laws in force in this state relating to common carriers and public utilities, and shall not repeal any other remedies or rights now existing in this state for the enforcement of the duties and obligations of public utilities and common carriers or the rights of the Public Utilities Commission to regulate and control the same except where inconsistent with the provisions of this act." Section 8369 (section 41 of the Utilities Act): "The provisions of this act and all grants of power, authority and jurisdiction herein made to the commissioners, shall be literally construed, and all incidental powers necessary to carry into effect the provisions of this act are hereby expressly granted to and conferred upon the commissioners." These are admonitions to give full practical effect both to the new law and to the old and to construe each liberally and impartially. The provisions of the Public Utilities Act indicate an intention to clothe the commission with general supervisory powers over the operation of an enterprise like that of the traction company. Section 8329 (section 3 of the Utilities Act): "The power and authority to control and regulate all public utilities and common carriers situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the right to apply for relief to said Public Utilities Commission as hereinafter provided in section 33 of this act." Section 8361 (section 33) provides that: "Every municipal council or commission shall have the power and authority, subject to any law in force at the time, to contract with any public utility or common carrier, situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, by ordinance or resolution, duly considered and regularly adopted: (1) As to the quality and character of each kind of product or service to be furnished or rendered by any public utility or common carrier, and the maximum rates and charges to be paid therefor to the public utility or common carrier furnishing such product or service within said municipality, and the terms and conditions, not inconsistent with this act or any law in force at the time under which such public utility or common carrier may be permitted to occupy the streets, highways or other public property within such municipality. (2) To require and permit any public utility or common carrier to make such additions or extensions to its physical plant as may be reasonable and necessary for the benefit of the public, and may designate the location and nature of such additions and of appeal board, and unless its recommendations are followed may proceed in court in the name of the state to set aside such ordinance or resolution "because of its unreasonableness or illegality, or because the same is not for the promotion of the welfare and best interests of said municipality. Other features of the legislative situation are well set forth by Mr. Justice Dawson in Street Lighting Co. v. Utilities Commission, 169 Pac. 205. " At a comparatively recent period it was bitterly complained that public service corporations controlled the municipalities, but the foregoing steps in the progress of legislation demonstrate that the state and its municipalities now control these corporations. The seemingly practical arrangement has been made by the Legislature, in accordance with the doctrine of home rule, that local affairs shall be under the control of local officers, but that utilities which are not principally confined in their operations to a given municipality shall be under the supervision of the state commission, and, as indicated, in certain cases of local friction the state commission acts first in a sort of appellate capacity and then next, if necessary, as advocate for the complainants by a proceeding in court. The property here directly involved is in a physical sense purely an interurban road. It is physically impossible to separate or divide the track itself into one for local and another for through purposes. There is no question that for all through purposes the property and its operation come within the exclusive jurisdiction of the state board. It is equally clear that these local cars must be operated so as to not to impair, impede, or destroy the through service. Let it be understood that nothing is intended or attempted to be decided now except the sole question as to whether the refusal of the traction company to comply with the ordinance is within the exclusive jurisdiction of the city commission or that of the Public Utilities Commission. No question affecting the local branch lines is before us. Giving to all the legislation involved the liberal construction expressly required, and following the familiar rule to give each portion thereof its intended meaning, the conclusion is reached, and the court holds, that the failure of the traction company to comply with the ordinance touching the times and place at and to which the cars in question shall be operated over the main line track is one within the exclusive jurisdiction of the Public Utilities Commission. The petitioner having been convicted on the 64(1)-EVIDENCE-QUESTION FOR In an action for relief on the ground of fraud, the evidence held to have been sufficient to warrant submitting to the jury the matter on which the verdict was based. care to make this trade, but was willing to exchange his land for a building in La Harpe owned by the plaintiff. In April, 1915, the defendant negotiated a deal by which the plaintiff was to deed the La Harpe property to Elyea, Elyea was to deed the Chase county land to the defendant, and the defendant was to deed to the plaintiff either the Chase county land or the Kreamer property, as the plaintiff might prefer. This arrangement was carried out to the extent that the plaintiff conveyed his property to Elyea, and Elyea some time later conveyed his to the defendant. On May 10, 1915, a written con 2. APPEAL AND ERROR 960(1)-DISCRETION tract was entered into for the sale by the OF COURT-ORDERS APPEALABLE. defendant to the plaintiff of certain prop The overruling of a motion to require differ-erty, including 460 acres of growing wheat, ent causes of action to be separately stated and numbered, being a matter of discretion, is ordinarily not subject to review. 3. APPEAL AND ERROR 1040(10)-REVIEWOVERRULING OF DEMURRER. Where a demurrer to a petition on the ground of misjoinder is based upon the claim that one of the defendants is not affected by one of the causes of action, the sustaining of a de murrer to the evidence as to that defendant prevents the overruling of the demurrer on that ground from being material on appeal. 4. APPEAL AND ERROR 1042(5)-STRIKING ALLEGATIONS OF PETITION. valued in the deal at $20 an acre. In a separate paragraph, however, the plaintiff was credited with $5,000 on the agreed purchase price, reducing the actual consideration that much. This paragraph was on the first of the two typewritten pages comprising the contract; the signature of the parties being upon the second sheet. After the execution of the contract, the paragraph referred to was changed (a new first page being substituted for the original) so that, instead of the $5,000 item being shown as a mere reduction in the purchase price therein before specified, it was made to appear as a credit to be given to the plaintiff in consideration of his releasing the defendant from his obligation to pay the plaintiff for the La Harpe property by making a deed to the Kreamer property or to the Chase county land. In speaking of the written contract, shortly before it was drawn up, the plaintiff told the defendant that it would cover the part of the trade re T. F. Garver, of Topeka, and W. R. Mitch-garding the wheat; that with regard to the ell, of Mankato, for appellant. R. W. Turner, Donald F. Stanley, and D. M. McCarthy, all of Mankato, for appellee. MASON, J. Benjamin Mullarky sued H. A. Manker, asking damages in the amount of $17,840, on account of fraudulent conduct of which he alleged the defendant had been guilty. He recovered a judgment for $3,537.86, from which an appeal is taken. The judgment was based upon a finding that the plaintiff suffered a loss of $4,840 through the defendant's misconduct; it being found that, except for this particular transaction, he would have owed the defendant $1,304.14. [1] 1. The principal contention of the defendant is that the finding of this liability on his part was not warranted by the evidence. The following is a brief statement of the means by which the plaintiff, according to his own story, was defrauded of the amount named: The defendant owned a piece of real estate in Jewell City known as the Kreamer property, which he wished to exchange for a tract of land in Chase county owned by one S. D. Elyea. Elyea did not La Harpe property they would "check that down as unfinished business and later on make settlement about September 1st." They then agreed that the price to be allowed should be $4,840. The plaintiff has never received anything for the property. The defendant's version of the affair is this: The arrangement for the exchange of property between the plaintiff, the defendant, and Elyea was made substantially as stated. The plaintiff deeded the La Harpe building to Elyea, and Elyea deeded the Chase county land to the defendant. Prior to May 10, 1915, the plaintiff and the defendant agreed that the latter should convey the Kreamer property in exchange for the property conveyed to Elyea, but should make the deed to the plaintiff's father, to whom the plaintiff was indebted. While matters stood in this condition, the written contract was entered into, it being agreed that the plaintiff should have a credit of $5,000 on the purchase price therein specified, in consideration of allowing the defendant to keep the Kreamer property. As the agreement had already been made that the deed should be executed to the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes plaintiff's father, the paragraph on the sub-forceable oral agreement-a purely formal ject was made to contain a provision that the matter, as his father had invested nothing in plaintiff was to procure a surrender of his the property, and had acquired no legal right father's rights in the matter. whatever regarding it. The jury found specifically that the writ- The defendant, on the other hand, as alten contract had been altered after its ex-ready indicated, asserts that the previous ecution, and the sufficiency of the evidence agreement had been that he was to give up to uphold the verdict turns largely upon the Kreamer property to compensate the whether any part of it had a tendency to plaintiff for the La Harpe property, but was show such alteration. The defendant's argu- to make the deed to the plaintiff's father bement to the contrary is mainly a summary of cause the plaintiff owed him $2,000, and that a number of circumstances pointing to the in the negotiations leading up to the wheat extreme improbability of such a change hav- deal it was agreed that a $5,000 credit should ing been made. Granting the force of the con- be given to the plaintiff in consideration of siderations suggested, as bearing upon the the defendant being allowed to retain the unlikelihood of a spurious first page having Kreamer property and being released from been substituted for the original (that obvi- his liability on account of having obtained ously being a necessary incident to the the benefit of the La Harpe property. The change, if any was made), the reasoning falls written contract in its present form is so short of justifying a reversal. Such a sub-worded as to support this version of the stitution was physically possible, and the transaction. plaintiff gave testimony tending to show that it was made. He testified that he heard the contract dictated, as it was being written on a typewriter; that the first page was read to him by the writer, but not in the form in which it now appears; that the paragraph in question is not in accordance with the actual agreement of the parties; that no writing in "longhand" (that is, made with a pen) was inserted in his presence, whereas the copy produced contained a number of such interlineations. In the brief of the defendant it is said: "That this contract, when signed, was in the same form as when introduced in evidence, is shown by an overwhelming preponderance of the testimony." This is a matter, however, upon which the verdict of the jury, having been approved by the trial court, must be regarded as final. The precise point of controversy between the parties will be made clearer by a somewhat fuller statement. It seems to be admitted that the price named for the growing wheat, $20 an acre, was excessive; for the defendant testified that "we figured the wheat price was inflated." The plaintiff asserts that the credit of $5,000 agreed to be given to him in the contract was merely a means of reducing the inflation. He admits that there was an understanding that he was to procure (as he did) a release from his father of any claim to the Kreamer property, but he gives this explanation regarding the matter: He and the defendant had disagreed as to the terms on which the Kreamer property was to be deeded to him in exchange for the La Harpe property, the defendant demanding $500 boot, which he refused to pay. In that situation the plaintiff's father offered to buy the Kreamer property from the defendant at a valuation of $8,000, and the offer was orally accepted, but no writing was executed, and nothing further came of this negotiation. The plaintiff insists that what he was to procure from his father was merely a release of There was sharp conflict in the evidence. No purpose would be served in going into greater detail on the subject. We conclude that the verdict must stand unless affected by some ruling on a question of law. [2] 2. The petition recited a number of transactions to which no reference so far has been made in this opinion. The defendant contends that several causes of action were stated, and complains of the overruling of a motion to require them to be separated and numbered. Under the Code of Civil Procedure as it existed prior to 1909 different causes of action set out in the same pleading were required to be separately stated and numbered. Gen. Stat. 1901, § 4522. The section imposing this requirement was omitted in the revision of that year, and at present the ruling on such a matter is expressly com mitted to the discretion of the trial court (Gen. Stat. 1915, § 7014; Code Civ. Proc. § 122), and is therefore not subject to review (Cribb v. Hudson, 99 Kan. 65, 160 Pac. 1019). [3] 3. A demurrer to the petition on the ground of misjoinder was overruled. It is urged that several causes of action were affect R. C. Postlethwaite, who was joined stated in the petition, one of which did not as a defendant. A demurrer to the evidence was sustained as to Postlethwaite, who thus for practical purposes ceased to be a party, thereby rendering immaterial the question whether his being a defendant occasioned a misjoinder. [4] 4. A motion to strike matter from the petition was sustained in part and overruled in part. It is contended that error was committed in allowing any of the challenged matter to remain in the pleading. Granting that the allegations objected to were redundant or irrelevant, no prejudice to the defendant is apparent. Harris v. Morrison, 100 Kan. 157, 163 Pac. 1062. It is argued that the superfluous matter, containing charges of fraudulent intent and conduct, tended to in |