time the rights of the land-owner ought to have been explained in such a manner that the jury might have understood that the landowner had the right to the use of the condemned property at the crossing made and at the one proposed to be made by the railroad company, and to such other farm-crossings as would not interfere with the use of the property for railroad purposes. It is a question of fact, not of law, whether the necessities of the railroad company demanded exclusive occupancy of its right of way for its purposes, and what use of the property by the land-owner is a detriment to or interference with the rights of the road. Railway Co. v. Allen, supra. If the jury had been properly directed, it is very evident that the special findings returned by them would have been answered differently in many respects. From the special findings it also appears that the jury awarded $100 damages for the increased risk of fire. The general current of authority is to the effect that in awarding damages to the owner of land taken for a railroad, the exposure of his remaining land and buildings to fire from the company's trains or engines is a proper element to be considered in making the estimate. This, upon the ground that the increased exposure to fire depreciates the value of the owner's remaining land, and if such increased exposure to fire does diminish the value of the remaining property, the owner is entitled to some compensation therefor; but the most that can be claimed. concerning the assessment for the increased exposure to fire by the passage of the railroad track through the premises is that it is competent only to take into consideration the risk of fire set out by the trains or engines without the fault of the company, and by reason of the operation of the road through the premises. If fires occur through the negligence of the company it would be liable to the owner, and this element should not be taken into account in estimating the compensation. Adden v. Railroad Co. 55 N. H. 413; Colvill v. Railway Co. 19 Minn. 283, (Gil. 240;) Lance v. Railroad Co. 57 Iowa, 636; S. C. 11 N. W. Rep. 612; Swinney v. Railroad Co. 59 Ind. 205; Railroad Co. v. Murdock, 68 Ind. 137; Railroad Co. v. Barlow, 3 Or. 311; Railroad Co. v. McComb, 60 Me. 290; Pierce v. Railroad Co. 105 Mass. 199; Railroad Co. v. Sawyer, 71 Ill. 361; 1 Redf. Railw. (4th Ed.) 290, § 8, notes; Pierce, R. R. 174, 175. The decisions of Pennsylvania and one or two other states oppose the allowance of damages for the increased exposure to fire, but they are contrary to the general course of decisions upon the subject, and therefore we do not follow them. Railroad Co. v. Hummell, 27 Pa. St. 99; Patten v. Railway Co. 33 Pa. St. 426. The jury, in assessing damages, also allowed the sum of $250, for the increased risk to the orchard on the premises by reason of leaving it more free of access to persons traveling along the railroad, and to tramps and employes of the railroad company. Such damages are so remote and speculative as to be without and beyond any possibility of ascertainment known to the law. They cannot and ought not to be taken into consideration in estimating the compensation which the land-owner is entitled to recover from the company. Railway Co. v. Lyon, 24 Kan. 745; Lance v. Railroad Co., supra; section 82, Comp. Laws 1879, 230. There are other alleged errors referred to; but, as the more important ones have been commented upon, it seems to us, in view of the prior decisions of this court, that it is unnecessary to refer further to the matters presented. The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with ⚫ the views herein expressed. (All the justices concurring.) (32 Kan. 588) STATE V. FLEMING. Filed November 28, 1884. INTOXICATING LIQUORS-SALE BY PHYSICIAN. A physician, having no permit therefor, cannot, under the statute, lawfully furnish intoxicating liquor as a medicine to a patient who is actually sick, and charge and receive pay for the same. Appeal from Cowley county. The following complaint or information, omitting court and title, was filed in the district court of Cowley county. "In the name, by the authority, and in behalf of the state of Kansas, I, F. S. Jennings, county attorney of Cowley county, Kansas, come now here and give the court to understand and be informed that John Fleming, at and within the county of Cowley, in the state of Kansas, and at and in a onestory frame building, situated on lot No. ten, (10,) in block No. one hundred and twenty-eight, (128,) in the city of Winfield, in said county and state, and on, to-wit, the twenty-seventh day of January, 1884, the said John Fleming, then and there being a physician and following his profession as a business, and having heretofore, to-wit, on the fifth day of May, 1881, duly filed with the probate judge of said Cowley county, Kansas, the affidavit required by section three of an act entitled 'An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific, and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes,' approved February 19, 1881, and which took effect May 1, A. D. 1881, which said affidavit was theretofore duly subscribed and sworn to by the said John Fleming, did, in good faith, make a verbal prescription for one W. C. McDonald for one pint of whisky, the said W. C. McDonald then and there being the patient of the said John Fleming, and being then and there actually sick, and whisky being then and there a necessary medicine and remedy for the said W. C. McDonald in his then condition; and the said John Fleming did then and there unlawfully furnish and deliver to the said W. C. McDonald the one pint of whisky prescribed by the said John Fleming for the said W. C. McDonald, as aforesaid, and did then and there receive from the said W. C. McDonald one dollar in payment for the said one pint of whisky so furnished and delivered as aforesaid; the said John Fleming not having first obtained and not then having a druggist's or manufacturer's permit from the probate judge of Cowley county, Kansas, as provided by law for the sale of intoxicating liquors, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas." On January 30, 1884, the defendant filed his motion to quash the complaint or information, upon the ground that it did not state facts sufficient to constitute a public offense. On January 31, 1884, the motion came on for hearing, and was sustained. The court rendered judgment that the defendant be discharged. The state appeals and brings the case here. W. A. Johnston, Atty. Gen., and F. S. Jennings, for appellant. HORTON, C. J. The principal question in this case is whether a physician, having no druggist's permit, can, under the statute, lawfully furnish intoxicating liquor to his patient, who is actually sick, needing the liquor as a medicine, and receive pay therefor? It is insisted-First, that the administering of liquors as a medicine to a patient by a physician, who receives pay for the same, cannot properly be denominated a sale; second, that it was not the intention of the legislature, in passing the prohibitory liquor law, to interdict a physician from administering intoxicating liquor, in good faith, to his patient, who is actually sick, and charging for such liquor. We think the information states all the requisites of a sale. The physician, as the seller, gave and passed over to his patient, the buyer, the intoxicating liquor in exchange for one dollar, and the patient accepted the liquor, and not only agreed to pay for it, but did actually pay its price. 2 Bouv. Law Dict. 606. In the case of Schaffner v. State, 8 Ohio St. 643, it does not appear that the physician charged or received compensation for the liquors administered by him. If, however, it was the intention of the court delivering the opinion in that case to decide that the administering of intoxicating liquors to a patient by a physician, who charges and receives pay for the same, is not a sale of liquors by the physician to the patient, we cannot assent thereto. Further, we are of the opinion that under the statute a physician cannot sell, even for medical purposes, intoxicating liquors without a druggist's permit. The amendment to article 5 of the constitution ordains: "The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific, and mechanical purposes." The legislature adopted, in 1881, a statute which attempts to regulate the sale of intoxicating liquors for the excepted purposes. Laws 1881, c. 128. Section 2 of this statute reads: "It shall be unlawful for any person or persons to sell or barter for medical, scientific, or mechanical purposes, etc., without having procured a druggist's permit therefor from the probate judge of the county," etc.; and the section further on provides that the probate judge is authorized to grant such permit to certain persons, who "can be intrusted with the responsibility of selling said liquors for the purpose aforesaid in the manner hereinafter provided." "The manner hereinafter provided" is explained in section 4. Any druggist having a permit, etc., may sell for medical purposes only upon the written or printed prescription of a practicing physician, duly signed by such physician, and who has made and filed the affidavit mentioned in the preceding section. Section 7 uses this language: "Any person, without taking out and having a permit to sell intoxicating liquors, etc., shall be deemed guilty of a misdemeanor." The statute is so plain and direct that we think the question is settled thereby that the legislature did not intend to exempt physicians from its operation. If the legislature had intended to exempt physicians, it could easily have done so. The method and the means of regulating the sale of intoxicating liquors for the excepted purposes mentioned in the constitution must be referred to the wisdom and discretion of the legislature. The various provisions of the enacted statute all tend to show that the legislature had no intention to permit physicians, druggists, or any other person to sell intoxicating liquors for the excepted purposes "without first having procured a druggist's permit therefor from the probate judge." Ita lex scripta est -so the law is written. We cannot make the law, nor by judicial construction change or modify its terms so as to legalize sales which are expressly prohibited. Woods v. State, 36 Ark. 36; Wright v. People, 101 Ill. 126; State v. Hall, 39 Me. 107; State v. Brown, 31 Me. 523; Commonwealth v. Sloan, 58 Mass. (4 Cush.) 52. Counsel refer to the statutes of several states forbidding the sale of intoxicating liquors, which contain no exceptive provisions, and cite decisions from those states to the effect that the legislatures of those states must be presumed to have left the necessity of saving life and curing the sick to operate as an implied exception to the general terms of the statutes. Thomasson v. State, 15 Ind. 449; State v. Mitchell, 28 Mo. 563; State v. Larrimore, 19 Mo. 391; State v. Wray, 72 N. C. 253. Some of these cases are in conflict with the previous decisions of this court. While the old dram-shop act, regulating the sale of intoxicating liquors, was in force, this court decided that druggists had no right to sell intoxicating liquors, even for medical purposes, without license. Salina v. Seitz, 16 Kan. 143. But the decisions cited by the defendant are not applicable to the present case, because there is embodied in the statute of this state a special provision made for the sale of intoxicating liquors for medical purposes, and the statute is bristling all over with provisions tending to show that it was in the mind of the legislature, at the time the statute was adopted, to forbid physicians and all other persons from selling or bartering intoxicating liquors for medical purposes without first having procured a permit. Physicians are specially referred to in the statute, and are prohibited from even prescribing intoxicating liquor as a medicine to a patient, unless they make and file with the probate judge of the county where they practice their profession an affidavit in the terms prescribed by the statute. Section 3, c. 128, Laws 1881. Again, said section provides: "Any physician who is regularly engaged in the practice of his profession as a business, and who in cases of actual sickness shall deem any of the liquors * * mentioned in the first section of this act necessary for the health of his patient, may give such patient a written or printed prescription therefor. But no such prescription shall be made or given except in case of actual sickness, and when, in the judgment of such physician, the use of intoxicating liquor is necessary as a remedy. * Every physician or person assuming to act as such, who shall make a prescription for any intoxicating liquors without having made and filed the affidavit in this section provided, or who shall, after making and filing such affidavit, violate any of the provisions of this act, shall be deemed guilty of a misdemeanor." It is very true that the evil sought to be remedied by the statute is the use of intoxicating liquors as a beverage, and that this purpose interprets the law. Intoxicating Liquor Cases, 25 Kan. 751. But the idea of prohibition as embraced in the statute is the absolute destruction of the use, as a beverage, of intoxicating liquors. To accomplish this, the legislature has seen fit to throw severe restrictions around the administering of liquors even as a medicine. It has attempted thereby to prevent the excepted sales from becoming the ways and means of rendering the statute abortive. Whether the legislature has acted wisely it is not for us to say; for the law, the legislature, and not the courts, is responsible. It is clearly indiscreet to prosecute transactions like the one charged in the complaint; but the defendant had no right to administer liquor as a medicine contrary to the provisions of the statute. The ruling and judgment of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views expressed. (All the justices concurring.) (32 Kan, 718) CAREY and another v. REEVES and others. Filed November 28, 1884. 1. PRACTICE-SERVICE BY PUBLICATION-AFFIDAVIT-REFORMATION AND FORECLOSURE OF MORTGAGE. On January 17, 1861, an action was commenced in the district court of Shownee county, Kansas, to reform a real-estate mortgage, and to foreclose the same, and service of summons was obtained only by publication. The affidavit for such service stated, among other things, "that the said defendant has removed from the said county of Shawnee, and now resides in that region of country known as Pike's Peak, and that service of summons cannot be made on said defendant within this territory." When this affidavit was filed is not shown. The mortgage was reformed and foreclosed, and the defendants in this action hold title to the real estate in controversy under the foreclosure judgment, and the plaintiffs now, in a collateral proceeding, attack the sufficiency of the aflidavit. Held, under the circumstances of this case, that the affidavit will be considered as sufficient. 2. SAME-PRESUMPTION AS TO JURISDICTION OF DISTRict Court. In the absence of any showing to the contrary, it will be presumed that the district court had jurisdiction to render the judgment which it did render; and if it were necessary to presume that the affidavit was filed after January 29, 1861, it will be so presumed. 3. SAME-COLLATERAL ATTACK. Where an action is commenced to reform and to foreclose a real-estate mortgage, the reformation of the mortgage is not a separate action, but a mere in |