The opinion of the court was delivered by
Hall, J.:This is an appeal from an order sustaining a demurrer to a petition for a Writ of Quo Warranto.
This action was instituted by the state of Kansas on the relation of Charles D. Johnson, County Attorney of McPherson County, Kansas, against the defendants, officers and members of newly organized Rural High School District No. 6 in McPherson County, to declare void the proceedings to organize the district, to declare the district nonexistent, and to oust the defendants.
The defendants filed motions to strike and to make more definite and certain, a portion of which were sustained and some of which were overruled by the court. The plaintiff then filed an amended petition.
*594The defendants demurred to the amended petition. The court sustained the demurrer. Hence this appeal.
In the petition the plaintiff raises many points of alleged error in the organization of the school district which was organized under the provisions of G. S. 1955 Supp., 72-3537 et seq.
The allegations are, inter alia, that the petitions circulated for the establishment of the district were not properly presented or filed; that a qualified elector was not appointed to make an enumeration; that the order approving the petitions was signed without authority; that the minutes of the Board of County Commissioners did not disclose that any action was taken relating to the petitions; that the notice of hearing published by the County Superintendent did not properly describe the boundary lines of the area sought to be organized; that the election notice was published without authority; that the election notice was less than the time provided by statute; that the polling places, judges and ballots did not comply with the statute; and finally, unlawful electioneering and solicitation were permitted at the polling places.
We have carefully examined these allegations with supporting exhibits. With the exception of paragraph 10 relating to the election notice, they are not of sufficient gravity to vitiate the statute and the organization of the district under it. (State, ex rel., v. Miami County Comm'rs, 168 Kan. 723, 215 Pac. 631; State, ex rel., v. Martin, 178 Kan. 476, 289 P. 2d 745.)
Paragraph 10 of the petition provides as follows:
“That contrary to G. S. 1949 (1955 Supp.) 72-3541, twenty-one (21) days did not elapse from the time of the first publication of said notice on November 26, 1956, until the election was held on December 17, 1956.”
This case was first argued on October 2, 1957. On January 24, 1958, the court heard further argument on the point raised in paragraph 10.
There is no dispute as to the facts of publication. The date of the first publication was on November 26, 1956, and the date of the election was on December 17, 1956.
The appellant contends that under the provisions of G. S. 1955 Supp., 72-3541, twenty-one (21) “clear days” did not elapse from the time of the first publication until the time of election.
The appellees contend that the statute does not require twenty-one (21) “clear days” from the time of the first publication until the time of election but that under the statute the first day of publica*595Ron is included and the' last day is excluded. If so, the election notice was good in the instant case because counting the first day of publication, on November 26, 1956, twenty-one (21) days had elapsed when the election was held on December 17, 1956.
The source of the prior law to G. S. 1955 Supp., 72-3541 is G. S. 1949, 72-3502.
Section 72-3502, G. S. 1949 provided:
“. . . Notice of all such elections shall be given at least twenty-one days prior to the date of such election by posting printed or typewritten notices on the door of each schoolhouse in the proposed district and by publishing the same twice in some newspaper published in each county in which the proposed district or any part of the proposed district lies, . . .” (Emphasis ours.)
SecRon 72-3541, G. S. 1955 Supp. now provides:
“. . . Notice of such election shall be given at least twenty-one days prior to the date thereof by posting notices on the front door of each schoolhouse in the proposed district and by publishing notice twice in a newspaper published in each county in which any part of the proposed district lies, the first publication to be not less than twenty-one days prior to the election. . . .” (Emphasis ours.)
The only change made in the statute was the addiRon of the words “the first publication to be not less than twenty-one days prior to the election.”
Prior to this amendement the rule was well established in the decided cases that in computing the Rme of “at least twenty-one days” the first day of publication was included and the last day was excluded. This rule of compuRng time did not require “twenty-one clear days” of publication. (State, ex rel., v. Wallace, 112 Kan. 264, 210 Pac. 348; City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937; State, ex rel., v. Miami County Comm’rs, supra.)
The Miami case was decided in 1950. The amendment of the law by the legislature was in 1951. The additional requirement in the statute that the first publicaRon must be “not less than twenty-one days” can only be construed to mean a legislative intent of twenty-one “clear days,” thus abrogaRng the previous rule established by judicial interpretation of G. S. 1949, 72-3502.
The case at bar is one of first impression under the amended statute (G. S. 1955 Supp., 72-3541.) Under its provisions notice of election must be given “at least and not less than twenty-one clear days” prior to the election.
The noRce here did not comply with the statute and the election held on December 17, 1956, was void.
*596The court erred in sustaining the demurrer to the amended petition.
The judgment is reversed.
Hall, J., dissents.