On the 2d day of May, 1919, thereafter, the county court of Tulsa county adjudged Lemuel Charley to be an incompetent person, and appointed Vernon F. Seaman guardian of both his person and estate. Defendants filed their answer, in which they alleged the contractual capacity of the plaintiff on the 11th day of April, 1919, and that on said date the defendants fully paid and satisfied said note and mortgage, in consideration of which the plaintiff made, executed, acknowledged, and delivered to the defendants an unconditional release of the mortgage and of the lien created thereby, and all obligation thereunder, which was duly filed for record in the office of the county clerk of Tulsa county, Okl., on the 14th day of April, 1910, and recorded in book 258 at page 300 of the mortgage records of said county. Plaintiff filed an unverified reply, in which he denied the execution. of the mortgage release, and further alleged that, if said release was executed by the plaintiff, it was void: First, because it was given without any consideration; and second, because at the time of its execution the plaintiff was an incompetent person, and therefore entirely incapable of transacting any business what ever. Upon the issues thus framed the cause proceeded to trial before the court and a jury, and the jury rendered a verdict in favor of the defendants. From a judgment of the court based on this verdict the plaintiff brings the cause regularly on appeal to this court. Several specifications of error are relied upon for a reversal, but the plaintiff presents all of them under the following propositions, which we shall notice for convenience in inverse order: First, that the judgment of the trial court is contrary to the evidence; second, contrary to the law; third, that the court erred in its instructions to the jury; fourth, that there was misconduct on the part of the defendants. The reply of the plaintiff was unverified, and therefore there remained for determination by the jury the following issues of fact: First. Was the execution of the release supported by any consideration? Second. Was plaintiff at the time he executed the release an incompetent person and therefore incapable of transacting business for himself? ment for that of the jury, and the verdict will not be disturbed on appeal. There is testimony tending to show that the plaintiff had a fair education, and that he was somewhat above the average for intelligence of members of his race of like age, and that he was paid for the execution of the release the sum of $1,400 (which included another mortgage for $500), part in cash and part by professional services rendered and to be rendered by Woodson Norvell, one of the defendants, in connection with a proceeding then pending to have him declared an incompetent by the county court of Tulsa county. In the absence of fraud, inadequacy of consideration or overreaching, neither of which were in issue under the pleadings, we think the evidence fairly supported the verdict of the jury on each proposition. [2, 3] The contention that the release is invalid as a matter of law because executed at a time when proceedings were pending to adjudge the plaintiff an incompetent person is untenable. That such a release might be set aside in a proper proceeding upon a showing of fraud or other inequitable conduct does not furnish the correct rule for our guidance, where the claim is that the release is void as a matter of law because executed at a time when proceedings to have the plaintiff adjudged an incompetent were pending, and in advance of the judgment of the court entered subsequently in such proceeding. Nor can we agree with plaintiff that the proceeding to declare the plaintiff an incompetent was lis pendens and the judgment subsequently entered in such proceeding binding on the defendants. The legal presumption of competency which supports the contracts of every person of full age would have a very restricted operation if the contention of plaintiff on this proposition were sustained. The legal presumption of competency must be indulged until this presumption is met and overturned by proof of contractual incapacity, and where, as here, the legal effect only of the contract is questioned, and, in the absence of fraud, the fact that such contract may have been made during the pendency of a proceeding to have one of the parties to the contract adjudged an incompetent has no application. We are unable to find from an examination of the evidence any foundation for the claim that the entire $1,400 was not paid by the defendants at the time of the execution of the [1] It is sufficient to say that these issues release, and that the defendants continued to were properly submitted to the jury, which pay a part of this amount to plaintiff after found in favor of the defendants on both of Seaman had been appointed guardian. The them. An examination of the record con- evidence tends to show that all of this vinces us that there was evidence reasonably amount was paid in cash and in legal servtending to support the verdict of the jury on ices rendered and to be rendered the plainboth propositions, and in these circumstanc- tiff, and the fact that a portion of the cash es, where no prejudicial errors are shown in received was transferred to Mrs. Charley and the instructions of the court and its ruling left subject to her orders with the defendant upon law questions presented during the Norvell, and paid to her after the appointtrial, this court will not substitute its judgment of Seaman as guardian, does not estab (221 P.) lish as a matter of law either incompetency | mind be so clouded or perverted by age, disease, or want of consideration at the time of the or affliction that he cannot comprehend the execution of the release. business in which he is engaging, then the writing is not his deed." [4, 7] It is next insisted that the court erred in giving instruction No. 6, and in refusing requested instruction No. 4. Instruction No. 6 is as follows: "You are instructed that an incompetent person as referred to in these instructions is a person who has not sufficient mental capacity to understand in a reasonable manner the nature and effect of the act which he is doing." It is the contention of the plaintiff that the true test of incompetency in cases of the kind under consideration is whether the person alleged to be incompetent is unable to properly manage and take care of his property and would by reason thereof be likely to be deceived or imposed upon by artful or designing persons. In the cases cited by plaintiff the issue arose in a proceeding to have a guardian appointed in the county court, and this, as we understand it, is the general rule in such cases; but where, as here, it is sought to show that a certain contract is void because one of the parties thereto was incompetent to enter into contractual relations of any kind, the rule is correctly stated in the case of Miller v. Folsom, 49 Okl. 74, 149 Pac. 1185, where it is said in the second paragraph of the syllabus: "The test of capacity to make a deed is that the grantor shall have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting. To invalidate a deed it must appear that the grantor was incapable of comprehending that the effect of the deed when made, execut ed, and delivered would be to divest him of ⚫ the title to the land set forth in the deed." In the body of the opinion, the court, quoting with approval from Jones v. Thompson, 5 Del. Ch. 374, among many other authorities cited, said: "In cases of alleged want of mental capacity, the test is whether the party had the ability to comprehend, in a reasonable manner, the nature of the affair in which he participated. This is the rule in the absence of fraud, for fraud when present introduces other principles. 8 C. E. Green, 511. This ability so to comprehend necessarily implies the power to understand the character, legal conditions, and effect of the act performed." And quoting with approval from Eaton v. Eaton, 37 N. J. Law, 108, 18 Am. Rep. 716, further said: "The test of capacity to make an agreement or conveyance is that a man shall have the ability to understand the nature and effect of the act in which he is engaged, and the business he is transacting. He may be old; he may be enfeebled by disease; he may be irrational upon some topics, but, in the absence of fraud and imposition, he may still execute a valid deed or other disposition of his property; but, if the 221 P.-17 See, also, Adams Oil & Gas Co. v. Hudson et al., 55 Okl. 386, 155 Pac. 220. It must be borne in mind that at the time the release was executed in the case at bar the plaintiff was of full age, and the presumption, of contractual capacity cannot be overthrown merely by a showing that on account of his improvidence a guardian might be proper, or by the fact that a short time after the release was executed a guardian was appointed by the county court on the ground of improvidence. Plaintiff next contends that the court erred in refusing to instruct the jury that, in determining the question as to competency or incompetency of the plaintiff at the time of the signing of the release of the mortgage, it should take into consideration all of the circumstances attending the transaction, including the acts and statements of the parties as well as the direct testimony of the witnesses as to competency or incompetency, and that they might consider the nature of the settlement claimed to have been made as compared with transactions made in the usual course of business between persons of ordinary mental capacity. The cases where this rule has been applied were likewise cases in which it was sought to have a guardian appointed, and not where contractual incapacity was urged as a defense to a contract. An improvident business transaction may be competent evidence in support of an application for guardianship, but in the absence of fraud or inequitable conduct in connection with the procurement of a contract it can have no application where it is sought to defeat the contract by showing that one of the parties was incompetent to enter into it. In such a case to hold that the transaction or contract itself may be received as evidence of incompetency would be to assume the very point in dispute, and impose the burden of proof at the outset upon the party relying upon the competency of the individual contracted with to show that he was at that time a competent person. We are of the opinion that the instruction was properly refused, and that the instructions as given by the court to the jury fairly stated the law as applicable to the case. [5] It is next contended that there was misconduct on the part of the defendants in the trial of the case in the court below. It is contended that the attorney for the defendants in his opening statement to the jury made use of certain prejudicial remarks in the presence of the jury upon certain irrelevant matters which tended to prejudice the jury against the plaintiff; that the remarks of counsel tended to impeach the act of the county court in appointing Vernon F. Seaman as guardian of the plaintiff, in that it was stated to be the result of a conspiracy on the part of some purported friends of the plaintiff to have him adjudged to be a crazy man, and by the use of whisky and other evil practices operated as a fraud upon the court. The record discloses that, if anything prejudicial was said by counsel for defendant in his opening statement, the court was extremely careful to see that no prejudicial inferences resulted from the remarks made, as appears from the following statement by the court to the jury just prior to the introduction of the testimony: "Q. Do you remember whether or not at the first hearing what Judge Williams said about whether or not he would keep you under guardianship? competent, irrelevant, and immaterial. "The Court: This brings us down to the question of whether or not any of that matter was admissible. * * The Court: All right; objection sustained." A careful examination of the evidence discloses that at every point in the taking of the testimony where the defendants sought to question or impeach the action of the county court, the trial court intervened and excluded such testimony from consideration by the "Gentlemen of the jury: In the opening state-jury. Whatever may be said with reference ment of the defense there have been some statements made to which the plaintiff objects, to the prejudicial nature of counsel's reand asks to have stricken. The court is of marks in view of the statement of the court to the opinion that there are some points of that statement that were not competent; in other words, that the court will, without reciting just what they were, upon those points upon which the court refuses to permit any testimony to be introduced, those parts of the statement of counsel will not be considered by you in your consideration of this case." An examination of the testimony reveals that in keeping with this statement to the jury the court did refuse to permit any testimony to be introduced which in any way tended to impeach the judgment of the county court in appointing Vernon F. Seaman as guardian of plaintiff. For instance, the following question was asked the plaintiff on cross-examination by the court: the jury and in keeping with this statement, its action in refusing to permit any testimony on that matter to be introduced, we think any prejudicial inferences arising from such remarks were cured, and cannot properly be urged as ground for reversal. [6] In no case that we have been able to find has a reversal ever resulted where it is possible to determine from the whole record that the jury could not have been prejudicially influenced. Aderhold v. Bishop (No. 11939, Okl. Sup.) 221 Pac. 752, opinion filed December 18, 1923, not yet [officially] reported. Finding no reversible error, it follows that the judgment of the trial court should be and is hereby affirmed. (221 P.) STATE ex rel. PUBLIC UTILITIES COM- (Supreme Court of Kansas. (Syllabus by the Court.) 1. Courts 209(2)-Petition on relation of Public Utilities Commission held to show reason for application to Supreme Court. MARSHALL, J. In this action, the plain. tiff seeks to compel the defendant to permit the Public Utilities Commission and its agents, accountants, and examiners to inspect Dec. 21, 1923.) and examine the books, accounts, papers, records, property, and memoranda concerning repairing, rebuilding, and making additions and betterments to locomotives, passenger and freight cars used by the defendant as a public utility and common carrier. The inspection and examination desired is of the books, accounts, etc., commencing January, 1916, and running to November 7, 1923. The petition alleges that the defendant refused to allow such inspection and examination. An alternative writ of mandamus has been issued, and the defendant has filed a motion to quash that writ. A verified petition in mandamus filed by the state on the relation of the Public Utilities Commission sufficiently complies with rule No. 3 of this court, where the petition shows on its face that the matters presented for adjudication are of a public nature and that their speedy determination is desirable. 2. Public service commissions 6-Commission may inspect books of public utility though no proceeding pending. Under section 8357 of the General Statutes of 1915, an inspection and examination of the books, accounts, papers, records, property, and memoranda of a public utility organized under the laws of this state and operating within the state may be made by the Public Utilities Commission or its agents, accountants, and examiners, although there is no complaint on file with the Commission or proceeding pending before it which requires such inspection or exami-· nation. 3. Searches and seizures 7-Inspection of books of railroad company by Public Utilities Commission held not to violate constitutional guaranty. An inspection and examination, made under section 8357 of the General Statutes of 1915, by the Public Utilities Commission, its agents, accountants, and examiners of the books, accounts, papers, records, property, and memoranda of an interstate railroad organized under the laws of this state and operating within it, does not violate section 15 of the Bill of Rights of the Constitution of this state. 4. Commerce 8(1)-State's right to inspect books of interstate carrier not denied by Interstate Commerce Act, The Interstate Commerce Act (U. S. Comp. St. § 8563 et seq.), giving to the Interstate Commerce Commission power to prescribe the form in which the accounts, records, and memoranda of an interstate carrier shall be kept, does not deny to the state the right to inspect and examine such books, accounts, etc., of an interstate carrier organized under the laws of the state and operating within it. Original proceedings in mandamus by the State, on the relation of the Public Utilities Commission and C. B. Griffith, as Attorney General, against the Atchison, Topeka & Santa Fé Railway Company. Motion to quash alternative writ denied. [1] 1. It is urged that the plaintiff has not complied with Rule No. 3 of this court. That rule, in part, reads: "In all original actions or proceedings instituted in this court the plaintiffs or applicant for the writ shall show fully, by affidavit, the reasons why the action or proceeding is brought in this court instead of one of the inferior courts having concurrent jurisdiction." There is nothing to show why this action is commenced in this court instead of in a district court, except what is contained in the petition itself. The petition is verified and alleges facts which show that the question in controversy is a matter of public concern and that an early disposition of the case is necessary. The petition alleges facts which show that the action is one that is properly commenced in this court. [2] 2. The petition does not allege that there is any complaint or any proceeding pending before the Public Utilities Commission making it necessary for the Commission to examine the books, accounts, etc., of the It argues that, because there defendant. is nothing pending before the Commission requiring an inspection or examination of the books of the defendant, it is not compelled to submit its books, accounts, etc., for examination or inspection. Is it necessary that some matter be pending before the Commission before it can properly make an inspection or examination of the accounts, books, records, etc., of the defendant? Section 8357 of the General Statutes of 1915, section 29 of the Public Utilities Act, reads: "The Commission shall have authority to examine and audit all accounts, and all items shall be allocated to the accounts prescribed by the Commission. The agents, accountants or examiners employed by the Commission shall have authority under the direction of the Commission to inspect and examine any and all books, accounts, papers, records, property and William R. Smith, Owen J. Wood, and memoranda kept by such public utilities and Alfred A. Scott, all of Topeka, for defend-common carriers. The accounts shall be closed annually on the 30th day of June, and a bal Fred S. Jackson, of Topeka, and Maurice Murphy, of St. Marys, for plaintiff. ant. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ance sheet of that date promptly taken there- constitutional right to refuse to submit its books from." This statute does not require that anything be pending with the Commission before it shall have power to examine the accounts of a public utility. The authority given appears to be co-ordinate with the other powers given to the Commission and does not appear to be subordinate to any of them nor dependent on any other provision of the Public Utilities Law. That authority is given for the purpose of aiding the Commission in the performance of the duties imposed on it by law. The statute, on its face, standing alone, gives to the Commission power to make the desired inspection and examination. [3] 3. The defendant argues that "The unwarranted invasion of the defendant's offices by the examiners and accountants of the Public Utilities Commission, interfering with the daily business of the carrier, its clerks and employees, in compiling its records and keeping its books, would amount to an unreasonable search, in violation of section 15 of the Bill of Rights of the Constitution of this state." Section 15 of the Bill of Rights of this state reads: "The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized." We quote from 3 Bouvier's Law Dictionary, 3404, as follows: and papers for an examination at the suit of the with criminal violation of a statute cannot plead state, and an officer of a corporation charged the criminality of the corporation as a refusal to produce its books; Hale v. Henkel, 201 U. S. 43, 26 Sup. Ct. 370, 50 L. Ed. 652. A corporation is bound to furnish information when called for by the state, so far as reasonably possible, and state the facts which excuse them Co., 81 Minn. 87, 83 N. W. 465, 50 L. R. A. from answering more fully; State v. Express 667, 83 Am. St. Rep. 366; by statute the right exists in Kansas. See Western U. Tel. Co. v. Austin, 67 Kan. 208, 72 Pac. 850. "It may be considered that, to a certain extent, railroad commissions are the machinery created by law for the exercise of visitatorial power." We quote from Guthrie v. Harkness, 199 U. S. 148, 158, 26 Sup. Ct. 4, 7 (50 L. Ed. 130, 4 Ann. Cas. 433), as follows: 66 'Visitation, in law, is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations. Burrill defines the word to mean "inspection; superintendence; direction; regulation." "At common law the right of visitation was exercised by the king as to civil corporations, and as to eleemosynary ones by the founder or donor. 1 Cooley's Blackstone, 481. 'In the United States the Legislature is the visitor of all corporations created by it, where there is no individual founder or donor, and may direct judicial proceedings against such corporations for such abuses or neglects as would at common law cause forfeiture of their charters.' 1 Cooley's Blackstone, 482, note. "In the case before us the Supreme Court of "Visitation. The act of examining into the Utah quotes from Merrill on Mandamus as affairs of a corporation. "The power of visitation is applicable only to ecclesiastical and eleemosynary corporations. 1 Bla. Com. 480. The visitation of civil corporations is by the government itself, through the medium of the courts of justice. See 2 Kent, 240. In the United States, the Legislature is the visitor of all corporations founded by it for public purposes; Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518, 4 L. Ed. 629. "All of the above was quoted in Guthrie v. Harkness, 199 U. S. 148, 157, 26 Sup. Ct. 4, 50 L. Ed. 130, 4 Ann. Cas. 433. * "Under the visitatorial powers of a state over corporations doing business within its borders, it is competent for it to compel such cor porations to produce their books and papers for investigation and to require the testimony of their officers and employees to ascertain whether its laws have been complied with, and this power extends to the production of books and papers kept outside of the state, and a statute requiring such production does not amount to an unreasonable search or seizure or a denial of due process of law; Consolidated R. Co. v. Vermont, 207 U. S. 541, 28 Sup. Ct. 178, 52 L. Ed. 327, 12 Ann. Cas. 658: Hammond P. Co. v. Arkansas, 212 U. S. 322, 29 Sup. Ct. 370, 53 L. Ed. 530, 15 Ann. Cas. 645. A corporation, being the creature of the state, has not the follows: "Visitors of corporations have power to keep them within the legitimate sphere of their operations, and to correct all abuses of authority, and to nullify all irregular proceedings. In America there are very few corporations which have private visitors, and in the absence of such, the state is the visitor of all corporations."" The defendant is a corporation organized under the laws of the state of Kansas. Public utilities operating within a state are, within certain limited fields, subject to the control of the state. Laws subjecting public utilities to partial control by the state are valid. The business of all corporations created by the state is subject to the control of the state while those corporations are operating therein except where that control violates some provision of the Constitution of the state or of the United States. The inspection and examination by this state of the books, accounts, papers, records, property, and memoranda of a domestic corporation is not an unreasonable search and seizure thereof and does not violate the Constitution of this state. An unwarranted interference with the business of a public utility by |