by the clerk of the court, now we, the undersigned, undertake in the sum of five hundred dollars to secure the party injured in the damages he may sustain if it be finally decided that the injunction ought not to have been granted.

"Dated this seventh day of September, A. D. 1885.

"This bond approved.

"J. W. ELLIS, Clerk."

"J. H. D. ROSAN. JAMES TEMPLE."

On September 8, 1885, the defendant served notice on the relator of a motion to vacate the temporary order of injunction, and that the motion would be heard before the district judge at Great Bend on September 12, 1885. On that day the parties to the action visited Great Bend, Barton county, for the purpose of disposing of the motion, but found the district judge absent. Thereupon the defendants served notice upon the relator that the motion to dissolve the injunction would be heard before the district judge at Lyons on the same day, and the district judge modified the order of injunction by vacating the same as to all of the defendants except the board of county commissioners. No exception was taken to this order. The further hearing of the motion as to the other defendants was continued until September 18, 1885, to be heard at Iuka, in Pratt county. On September 17, 1885, the relator filed the following amendment to his petition, verified by his own oath:

“And now comes the said relator, and, by leave of the court just had and obtained, files this an additional statement of facts in amendment of the petition now on tile in this cause, and alleges that of the 1,581 names appearing on said pretended petition mentioned and referred to in said petition on file in this cause, and on which said election called by said Eggleston and Howald on the first of September, 1885, was based, 466 of the same requested the board of county commissioners of Pratt county not to consider their signatures in their consideration of said pretended petition, and before the first day of September, 1885, withdrew their names from said pretended petition, of which said county commissioners had due notice before said first day of September, 1885,- -a list of said withdrawn names is hereto attached, marked ‘A,' and made a part hereof, [list omitted;] that of the 1,581 names appearing on said pretended petition as aforesaid, 24 of the same appear thereto twice, a list of which is hereto attached, marked, · B,' and made a part hereof, [list omitted; that of the 1,581 names appearing on said pretended petition as aforesaid, 31 of same are now, and were when said pretended petition was presented to said board of county commissioners, non-residents of said Pratt county, a list of which is hereto attached, marked C,' and made a part hereof, [list omitted; that of the 1,581 names appearing on said pretended petition as aforesaid, 134 of same were signed to said pretended petition under false and fraudulent representations, as appears by the 134 affidavits attached together and filed herewith as Exhibit D, and hereby made a part hereof, [affidavits omitted;] that of the 1,581 names appearing on said pretended petition as aforesaid, 487 of same were not eligible petitioners, as their names do not appear on the last assessment rolls of the several township and city assessors for said Pratt county, a list of which is hereto attached, marked E,' and made a part hereof, [list omitted; that of the 1,581 names appearing on said pretended petition as aforesaid, 181 never signed the same, or any part of

same, but were put on a detached piece of paper, which was afterwards attached to said pretended petition, a list of which is hereto attached, marked F,' and made a part hereof, [list omitted;] that of the list above named 216 of said names are common to two or more of same, leaving not more than 545 of the names on said pretended petition that are, or were when the same was presented as aforesaid, eligible petitioners, and leaving said pretended petition with not more than 545 eligible petitioners; that there are between 1,600 and 1,900 qualified electors whose names appear on the last assessment rolls of the several township and city assessors for the said county of Pratt. Wherefore plaintiff asks that this honorable court will grant the prayers of said petition filed herein."

On said September 18th the relator filed a motion before the district judge to reinstate the injunction as to the trustees and justices of the peace, which motion was overruled, and the relator excepted. The further hearing of the motion was continued until October 5, 1885, to be heard at Great Bend, and on that day the injunction was wholly vacated and set aside. The relator excepted, and, for the purpose of having the orders of the district judge reviewed in this court upon petition in error, the judge fixed the time within which the petition in error should be filed. Within that time the petition in error was filed.

S. B. Bradford, Atty. Gen., Gillett & Whitelaw, E. A. Austin, H. P. Cooper, and D. C. Lewis, Co. Atty., for plaintiff in error.

Leland J. Webb, for defendant in error.

HORTON, C. J. The question for our determination is whether the temporary injunction granted by the probate judge of Pratt county, on September 7, 1885, enjoining the county commissioners of that county from canvassing the vote polled on October 1, 1885, upon the proposition for the relocation of the county-seat of that county, shall be continued in full force until the action can be tried and determined. The order calling the election was made September 1, 1885. The statute requires 30 days' notice of the election. Section 6, c. 26, Comp. Laws 1879. It is claimed that although notices of the election were posted September 1st, no legal notice of the election could have been given, as there was not sufficient time so to do. It is settled in this state that where any particular number of days, not expressed by clear days, is prescribed, the rule in regard to the computation of time is not to exclude both the day on which the notice is served and the day on which the act is to be performed, but to exclude the one and include the other. Section 722, c. 80, Comp. Laws 1879. Following this rule, 30 days' notice was given. This was sufficient. English v. Williamson, 34 Kan. ; S. C. 8 Pac. Rep. 214.

It is next claimed that no sufficient petition was presented to the board of county commissioners under the provisions of section 1, c. 91, Sess. Laws 1883, which, among other things, provides:

"In all cases where the county-seat of any county in this state has been or shall hereafter be located by a vote of the electors of such county, *** the board of county commissioners, upon the petition of three-fifths of the

legal electors of such county, shall order an election for the relocation of the county-seat.'

The last assessment rolls of the several township and city assessors of Pratt county contain the names of from 1,600 to 1,900 legal electors. The petition presented purported to contain 1,581 names. If the names of the persons who requested the commissioners to withdraw their names from the petition, and the names of the ineligible petitioners, had been stricken off the petition before it was finally acted upon, or if the names of such persons had been disregarded, the petition would not have contained the names of sufficient petitioners; that is, there would not have been upon the petition three-fifths of the legal electors of the county whose names appeared upon the last assessment rolls of that county. If the district judge did not vacate the injunction upon the ground that the probate judge had no authority in this class of cases to issue an injunction, it is probable that he vacated the injunction upon the theory that the county board had no power to strike from the petition the name of any one who had signed the same, although requested so to do by the signer. The purpose of the petition prescribed by the statute is to enable the county board to determine what the will of the people is in that regard, and whether the number of legal electors required by the statute are, at the time of final action thereon, in favor of calling the election. Of course, ineligible petitioners ought not to be counted; and we think the county board, at any time before tak ing final action upon such petition, upon the request of any person who has signed the same, may determine not to regard such person as a petitioner, and may have his name stricken off the petition, or, if not stricken off, may regard him as not having signed the same. The legislature intended that no election should be ordered for a relocation of a county-seat, in cases like the present, unless a number of the legal electors of the county, equal to three-fifths of the number of legal electors who were assessable and had been assessed at the last assessment, should petition for such an election. If any such elector has by false representations, or through a misapprehension of the facts, been induced to sign such petition, he ought to be permitted to have his name stricken from the petition, if his application therefor is made to the county board prior to final action upon the petition. The board of county commissioners of Pratt county evidently mistook their duty in this respect, and it is only just to them and the people of their county that they have an opportunity to re-examine the petition and erase therefrom the names of all the signers who made such a request, and to otherwise purge the petition of ineligible petitioners.

We do not assent to the view that the finding of the board is so conclusive as to be beyond attack by this proceeding, which was commenced prior to the holding of the election. Commissioners v. Brewer, 9 Kan. 318; Gillett v. Lyon Co. 18 Kan. 410; Wabaunsee

Co. v. Muhlenbacker, Id. 129; Oliphant v. Atchison Co., Id. 386; Welsford v. Weidlein, 23 Kan. 601; Benton v. Nason, 26 Kan. 662; Fox v. San Mateo Co., 49 Cal. 563. We have examined the decisions cited, holding that the determination of the county board in such cases is conclusive until reversed or set aside upon appeal or by writ of error, and also the decision that the county board cannot comply with the request of the signers of petitions or remonstrances asking their names to be stricken off. The former decisions are contrary to the adjudications of this court, and the reasoning of the latter decision is not satisfactory. It is true that county-seat contests are attended with great bitterness, and charges and counter-charges of unfair practices and fraud are more or less bandied about; but we cannot perceive that the peace of the community can be promoted by the granting of an election for the relocation of the county-seat upon an insufficient petition, or that there will be any increase in the bitterness among the people if the signers of petitions are permitted to have their names stricken off, where their signatures have been procured by fraud or through a misapprehension of facts.

It is further claimed that the injunction granted September 7th has and can have no operation, because the state can give no bond; and if she could give bond, she would not be suable on it; also because it is alleged that the probate judge did not fix the amount of the undertaking.

To support the first proposition the case of Com. v. Franklin Canal Co., 21 Pa. St. 117, is cited as decisive. The Pennsylvania statute provides that "no injunction shall be issued by any court or judge until the party applying for the same shall have given bond with sufficient sureties." The statute of this state reads: "No injunction shall operate until the party obtaining the same shall give an undertaking, executed by one or more sufficient securities." Under the Pennsylvania statute the party applying for the injunction must give or execute the bond; under the Kansas statute the party obtaining the injunction may give or furnish the bond, with one of more sufficient securities, but need not execute it. Even, however, if it be assumed that the Pennsylvania statute regarding injunctions is exactly similar to ours, yet, as in this state, all obligations are several as well as joint, we think that where an injunction suit is brought by the state, upon the relation of a proper party, a bond furnished by the plaintiff and executed by sufficient securities would be valid and legal.

Upon the other proposition, while the order allowing the injunction does not fix the amount of the undertaking, yet it appears from the face of the undertaking that the injunction was granted upon the condition that the plaintiff give a bond to the defendants in the sum of $500, to be approved by the clerk of the court. This bond was given and approved on the same day that the order of injunction was allowed. Taking all the record before us, we think it sufficiently ap

pears that the probate judge fixed the amount of the undertaking, and that the bond approved by the clerk of the court was given and accepted in pursuance thereof.

This is not an action brought under the provisions of article 7, c. 36, Comp. Laws 1879, for contesting county-seat elections; but is a suit brought against county and other officials, involving their official action and affecting the public interests. The petition alleges that there was no sufficient petition presented to the board of county commissioners, and that they acted wholly without any authority in ordering the election for the relocation of the county-seat of Pratt county; that they disregarded their duty in not striking off the petition the ineligible petitioners, and the names of the electors who applied to have their names stricken therefrom, before the election was ordered. The matters set up in the petition are of equitable cognizance, in which a remedy may be by injunction, and the attorney general or the county attorney of the county interested is the proper officer to prosecute this kind of an action. Gossard v. Vaught, 10 Kan. 162; State v. Faulkner, 20 Kan. 547; State v. Marion Co., 21 Kan. 432; Benton v. Nason, supra.

Counsel for the county board rely with a great deal of confidence. upon the cases of Moore v. Hoisington, 31 Ill. 243, and Dickey v. Reed, 78 Ill. 261, to establish the doctrine that the canvass of election returns cannot be interfered with by an injunction. Both of those cases were proceedings for contesting elections. This is not a proceeding to contest an election, but to restrain the canvass of a vote upon the ground that the petition presented to the county board for the election was wholly insufficient because of the fact that certain names were by the signers requested to be withdrawn, and that some of the names signed were the signatures of non-residents or other unauthorized persons. The petition alleges, in substance, that no election ought to have been ordered upon the petition, and that no election could have been legally held upon the petition, under the provisions of the statute.

As to the constitutionality of chapter 91, Sess. Laws 1883, see State v. Butler Co., 31 Kan. 460; S. C. 2 Pac. Rep. 562. The vote polled October 1st cannot be canvassed or declared, or any valid proceedings taken thereon to change the county-seat of Pratt county, until the real facts of the case shall be ascertained upon the final trial, and the temporary injunction now in force shall have been legally dissolved; and the vote can never be canvassed or declared if it be finally determined that there was no valid or sufficient petition. presented to the county board upon which to order an election. If upon the trial it shali be made to appear that after striking from the petition the non-eligible petitioners, and the names of all persons who asked their names to be stricken off the petition before final action was taken thereon, the petition contains less than three-fifths of the legal electors of the county on the last assessment rolls of the