situated, as part of the public highway. No objections have ever been made by the owners of the land over which the road runs, to the public use; and, as it has been used and traveled by the public for more than 10 years, the legal presumption is that the owners abandoned the possession of the land for the road, and therefore the road established upon the land is the public highway. "Public highways,” as defined by the Code law, are “roads, streets, alleys, lanes, * * * land laid out or erected as such by the public, or, if laid out and erected by others, dedicated or abandoned to the public.' Section 2618, Pol. Code. A highway thus created continues to exist until it is vacated or abandoned by order of the board of supervisors of the county in which it is situated, or by operation of law, or judgment of a court of competent jurisdiction, (sections 2619, 2621, Pol. Code,) or it may be changed, altered, or discontinued in the mode prescribed by article 6, c. 2, of that part of the Political Code which regulates the subject of highways in the counties of the state. Sections 2681-2692, Id. But there was no proceeding commenced under that law for changing, altering, or discontinuing the road. After discovering by a survey of the line of the road, made in 1885, that the road, as it has been used and traveled for over 10 years, was originally located and opened by mistake of the road viewers, it was attempted to have the supposed mistake corrected by having the road relocated and reopened upon the true line, as disclosed by the survey. But boards of supervisors have no jurisdiction of a proceeding to correct a mistake in the view and survey of a public road which has become a highway. They have only such jurisdiction and general supervision over roads within their respective counties as are given them by section 2643, Pol. Code. The order of the eleventh of April, 1885, by which the board of supervisors commanded the defendant, as road overseer, to open said road to the public on its true line, was therefore an excess of the jurisdiction of the board, and conferred no authority on the defendant to enter upon the plaintiff's inclosure for the purpose of locating and opening upon the plaintiff's land a new road in place of the road which has been opened and used for 10 years as the high way. Judgment reversed, and cause remanded. We concur: MORRISON, C. J.; MYRICK, J.; MCKINSTRY, J.; SHARPSTEIN, J. (36 Kan. 99) KANSAS FARMERS' MUT. FIRE INS. Co. v. AMICK. ERROR-NOTICE OF SETTLING CASE MADE-NECESSITY OF-DISMISSAL. A petition in error will not be dismissed because the case for the supreme court was settled and signed without notice to defendant in error, if the latter acknowledged service of the case made, and afterwards suggested amendments, all of which of any importance were made. Error to district court, Franklin county. Stambaugh, Hurd & Dewey and J. R. Burton, for plaintiff in error. Alonzo Dishman, for defendant in error. PER CURIAM. The defendant in error moves the court to dismiss the petition in error upon the ground that the case was settled and signed without notice to her or her attorneys; and, in support of the motion, Missouri, K. & T. Ry. Co. v. Roach, 18 Kan. 592, and Weeks v. Medler, Id. 425, are cited. From the record it appears that the motion for a new trial was overruled, and judgment entered on October 8, 1885, when 60 days was allowed in which to make and serve a case for the supreme court. On November 30th an or der was made duly extending the time in which to make and serve the case to the sixteenth day of December, 1885. On December 4, 1885, the attorney for the defendant in error acknowledges service of the case made, and afterwards suggested amendments. The case was settled and signed on the fourteenth day of December, 1885, and in the certificate the judge certifies that the case was duly presented to him for signing and settling. It does not affirmatively appear in the record that the defendant in error was present, or had notice of the time when the case would be settled and signed. It does appear, however, that amendments were suggested by the defendant in error, some of which were allowed by the judge, and others disallowed. The reason that notice is required to be given to the defendant in error is that he may appear, and have the case made amended in accordance with his suggestions. If the amendments suggested by the defendant in error are made by the judge, he cannot complain of the want of notice; nor is there cause for complaint if the amendments disallowed are immaterial. We find that only a few of the amendments suggested by the defendant in error were disallowed, and that they were wholly unimportant. The cases cited, therefore, do not control, and the motion must be overruled. (36 Kan. 27) KOESTER, Sr., v. STATE ex rel., etc. (Supreme Court of Kansas. December 9, 1886.) INJUNCTION AGAINST SALE of Liquor-CONTEMPT-LANDLORD NOT IN POSSESSION. Where a landlord leases his premises to a tenant for a term of years at a stated rent, and thereby loses all control over the premises while the tenant is in possession, and subsequently a temporary injunction is granted against him and a subtenant forbidding them from opening or keeping a saloon upon the premises for the sale of intoxicating liquors in violation of law, and afterwards, and while the original lessee is in possession of the premises under the lease, a subtenant opens a saloon therein and sells intoxicating liquors, without having any permit therefor, the mere knowledge of the landlord that his premises are used for the sale of intoxicating liquors in violation of law, and his failure or omission to take steps to avoid the lease, and to re-enter the premises, is not sufficient to justify his punishment for contempt for disobedience of the temporary injunction. Syllabus by the Court.) Appeal from district court, Atchison county. On June 22, 1886, the following petition, omitting court, title, and verification, was filed in the district court of Atchison county: "I, J. T. Allens worth, assistant attorney general of the state of Kansas for Atchison county, for and on behalf of the state of Kansas, come now, and give to the court the information, that it may be informed and understand, that on the first floor of the building commonly known as 105 and 107 North Fifth Street,' and located on the south thirty-five (35) feet of the north onehalf lots thirteen and fourteen, (13 and 14,) in block fifteen, (15,) in Old Atchison,' a part of the city of Atchison, in Atchison county, Kansas, is a place where spirituous, vinous, fermented, malt, and other intoxicating liquors are, and have been for several months last past, bartered, sold, and given away, and where intoxicating liquors are kept for barter, sale, and gift, in violation of law; that the said place, in consequence thereof, is a common nuisance to the people of the state of Kansas, and especially to the people of the city of Atchison, in the county of Atchison, in the state of Kansas; that the defendant William T. Temme is the keeper, and maintains and operates said place as a place where spirituous, vinous, fermented, malt, and other intoxicating liquors are sold, bartered, and given away, and are kept for sale, barter, and gift; that the defendant William T. Temme has no permit granted or issued by the probate judge of Atchison county, Kansas, authorizing the said defendant William T. Temme to sell, barter, or give away, or keep for barter, sale, or gift, any intoxicating liquors; that the defendant Frederick Koester, Sr., is the owner of the premises above described, and has full knowledge of the purpose for which said place is being used as a place where intoxicating liquors are sold, bartered, and given away, and are kept for barter, sale, and gift, and that the defendant William T. Tenime has no permit issued according to law by the probate judge of Atchison county, Kansas, and, knowing the fact, permits the defendant William T. Temme to conduct and carry on the said illegal business therein, and maintain the said common nuisance; that said place is a common nuisance, of great injury to the public, which injury is irreparable, and cannot be compensated in damages. "Wherefore the said J. T. Allensworth, as assistant attorney general of the state of Kansas for Atchison county, for and on behalf of the state of Kansas, prays: "First. That the premises, to-wit, on the first floor of the building commonly known as 105 and 107 North Fifth Street,' and located on the south thirty-five (35) feet of the north one-half of lots thirteen and fourteen, (13 and 14,) in block fifteen, (15,) in Old Atchison,' a part of the city of Atchison, in Atchison county, Kansas, may be adjudged to be a common nuisance, and that an order may issue directing the sheriff or other proper officer to shut up and abate said place. "Second. That the defendants may be perpetually enjoined from using, or permitting to be used, the said premises as a place where intoxicating liquors are sold, bartered, or given away, or are kept for barter, sale, or gift, otherwise than by authority of law. "Third. That, in the mean time, the said defendants may be enjoined, until the further order of the court, from keeping open, or permitting to be open, the said first floor of the building commonly known as · 105 and 107 North Fifth Street,' and located on the south thirty-five (35) feet of the north onehalf of lots thirteen (13) and fourteen, (14,) in block fifteen, (15,) in ‘Old Atchison,' a part of the city of Atchison, in Atchison county, Kansas, and from selling, bartering, or giving away, and from keeping for sale, barter, or gift, or use in or about said premises, any malt, vinous, spirituous, fermented, or other intoxicating liquors, and from permitting such liquors to be sold, bartered, or given away, or to be kept for sale, barter, or use, at, in, or about said premises. "Fourth. And said J. T. Allensworth, as such assistant attorney general of the state of Kansas for Atchison county, for and on behalf of the state of Kansas, prays that such other and further relief may be given as may be warranted at law, and the exigencies of the case may require." On June 28, 1886, the application for a temporary injunction came on for hearing, and thereupon the court granted the temporary injunction against Frederick Koester, Sr., and William T. Temme, the defendants, and the following order was made: "It is therefore ordered, adjudged, and decreed by the court that said defendants, and each of them, be, and they are hereby, restrained and enjoined from keeping, or permitting to be open, the first floor of the building commonly known as 105 and 107 North Fifth Street,' and located on the south 35 feet of the north half of lots 13 and 14, in block 15, in Old Atchison,' a part of the city of Atchison, in Atchison county, Kansas, as a saloon, and from selling, bartering, or giving away, and from keeping for sale, barter, gift, and delivery, in and about said premises, any malt, vinous, fermented, spirituous, or other intoxicating liquors, and from permitting such liquors to be sold, bartered, or given away, or kept for sale, barter, gift, or delivery, in and about said premises, without a permit and as authorized by law." On August 9, 1886, in vacation, a motion was filed on the part of the plaintiff that Frederick Koester, Sr., be punished for contempt for violating and disobeying the temporary injunction granted against him on June 28th. Thereupon the court issued an order against said Koester to appear before him at chambers on August 10, 1886, to show cause why he should not be punished as for contempt. The defendant read in evidence a lease dated June 13, 1883, between himself and H. S. Taylor, to continue to June 13, 1884, at $135 per month in advance, and giving said Taylor the option of continuing the lease, and remaining in possession of said premises, for four years from June 13, 1884. After the reading of the lease it was admitted that the same was in full force and effect, and that H. S. Taylor was in possession of the premises under the lease, and that the property therein described was the same property mentioned in the petition for the injunction and in the affidavits read upon the hearing. On August 16, 1886, the district judge, in vacation, made and signed the following order, omitting court and title: "Now, on this tenth day of August, 1886, this cause coming on to be heard before Hon. D. MARTINSOLE, judge of the above-entitled court, at chambers, at the court-house, in the city of Atchison, in Atchison county, Kansas, in the matter of the motion of the plaintiff for an order of attachment against the defendant, Frederick Koester, senior, for violation of the order of injunction herein, and the state appeared by J. F. Tufts, assistant attorney general of the state of Kansas for Atchison county, and the defendant appearing in his own proper person, and without objecting to want of formal return, and without making any objection at the time to the authority of the said judge at chambers, and asking for a continuance of said matter, the same was accordingly continued, by consent of parties, to Saturday, August 14, 1886, at the same place, for further hearing; and said matter coming on for further hearing, upon same matter, at same place, upon August 14, 1886, said plaintiff appearing by J. F. Tufts, its attorney, and defendant appearing in person and by Everest & Waggener, his attorneys, and the said judge having heard the evidence and argument of counsel thereon, and having taken the same under advisement, the further hearing and decision of said matter was adjourned until Monday, August 16, 1886, at same place; and the said matters coming on for further consideration and decision, at the same place, upon August 16th, and the state appearing by J. F. Tufts, its attorney, and the said Frederick Koester appearing in person and by his attorneys, Everest & Waggener, and said judge, being fully advised in the premises, doth find that said Frederick Koester, senior, has violated the order of injunction herein, and committed contempt of the order and authority of this court. It is therefore ordered that said Frederick Koester, senior, pay a fine of $100 for the use of the state, as well as all costs of this proceeding, taxed at $- and that he be, and is hereby, committed to the jail of Atchison county, Kansas, till said fine and costs are paid." The defendant excepted, and appeals to this court. Everest & Waggener, for appellant. J. F. Tufts, Asst. Atty. Gen., for the State. HORTON, C. J. The facts in this case are substantially as follows: Frederick Koester, Sr., is the owner of a two-story brick building, situate on lots 13 and 14, in block 15, in Atchison city. On June 13, 1883, he rented the premises to Heber S. Taylor, for the period of one year, at the rate of $135 per month, payable in advance, Taylor having the option to continue the lease for four years from its termination upon the same terms. Afterwards, Taylor sublet the first floor of the building to William T. Temme, who opened a saloon, and, without having any permit, sold intoxicating liquors therein, in violation of law. On June 22, 1886, this action was brought against Koester and Temme to shut up and abate the place. On June 28, 1886, a temporary injunction was granted, restraining them from opening or keeping any saloon in the building for the sale of intoxicating liquors. On August 9, 1886, a motion was filed on the part of the plaintiff asking that Frederick Koester, Sr., be punished for contempt for violating the injunction granted against him. On the hearing of the motion it was proved that, after the granting of the temporary injunction, a party from St. Joseph, Missouri, reopened a saloon in the room formerly occupied by Temme, and continued to sell intoxicating liquors in violation of the law; that Koester lived within a few blocks of this saloon; that the saloon was open to the public, so that any person could enter and see that intoxicating liquors were sold in violation of law. It was also proved that, at the time, Koester was a subscriber for two Atchison newspapers, in which appeared a notice that a St. Joseph man had gone into the saloon business in the Koester building, formerly kept by W. C. Temme. It was admitted upon the hearing, by the plaintiff, that the lease of the premises from Koester to Taylor, during all said time, was in full force and effect, and that Taylor, the lessee, was in possession of the premises under the lease. 1. It is insisted, upon the part of the appellant, that the legislature has no right to place any restrictions or limitations upon the sale of intoxicating liquors if offered for medical, scientific, or mechanical purposes only, and therefore that the legislature has no right to confine the sale of intoxicating liquors, for these purposes, to a class of men called druggists. This point was commented upon and disposed of in the Intoxicating Liquor Cases, 25 Kan. 751. In those cases, Mr. Justice BREWER, in speaking for the court, said: "We pass, then, to the second objection; and that is that this portion of the statute must be pronounced unconstitutional and void because it is class legislation, because it restricts the privilege of dealing in liquor to one class, the druggists, and thus debars many from engaging in a business which is profitable, and by some desired. This objection is not very strenuously urged, and cannot be sustained. It will not be doubted that the police power of the state is broad enough and strong enough to uphold any reasonable restrictions and limitations on the keeping, use, or sale of any substance whose keeping, use, or sale involves danger to the general public. The storage of powder or explosive and highly inflammable oils may be forbidden within city limits. The legislature may require railroads to fence their tracks, dangerous machinery to be everywhere inclosed, poisons to be labeled when sold, the practice of any profession requiring skill and knowledge to be confined to those who have passed a certain examination, or pursued a prescribed course of study. By virtue of the same power it may commit the sale of liquor to any particular class of persons which, by reason of its special training and habits, it may deem peculiarly fit for such duty." 2. We do not think the evidence presented upon the hearing justified the district judge in punishing Koester for contempt. The lease of the premises to Taylor was in full force and effect, and it is conceded that Taylor, as the tenant of Koester, had full possession of the premises. Temme was an occupant under Taylor, and so, also, was the party from St. Joseph who reopened the saloon after Temme left. There is no evidence in the record tending to show that Koester leased the premises to Taylor with any knowledge they would be unlawfully used by the lessee. There is no connection shown between Koester and Temme, or Koester and the person who opened the saloon after the same was closed by the temporary injunction. By the lease, Koester parted with all control over the premises for the term granted to Taylor. It is true that the sublessees, during a part of the term, used the premises in violation of law, but there is no evidence that Koester assented in fact to such use, or in any way advised or participated in the operation of the saloon. There is no evidence that he had any personal control of the saloon, or was in any way interested therein. His rent was neither greater nor less on account of the saloon. Crofton v. State, 25 Ohio St. 249; State v. Pearsall, 43 Iowa, 630. The most which the evidence establishes is that, after Koester leased his building to Taylor, he had knowledge that from June, 1886, to August of the same year, the lower room thereof was used as |