ants have only refused to call the elections upon the said several petitions because of their doubt as to their authority so to do; that on December 29, 1885, they and each of them were enjoined from calling any of said elections in an action then pending, wherein the state of Kansas, upon the relation of D. A. Stubbs, was plaintiff, and said board of county commissioners were defendants; that the injunction suit has never been discharged or dismissed; and that the said action still remains pending and undetermined in the district court of Rush county." James Hagerman, S. I. Hale, and H. Fierce, for plaintiff. HORTON, C. J. This is an action brought in this court by the plaintiff against the defendants to compel the defendants to call an election to vote on the question of subscribing stock and issuing bonds to aid the Walnut Valley & Colorado Railroad Company to construct a line of road in and through the following townships of Rush county: Garfield, Banner, Center, Union, and Belle Prairie. It is admitted that the petition was properly presented, duly canvassed, and found to contain the requisite number of legal petitioners. The defendants answer that they are willing to order the elections requested whenever they have the right so to do, but are prevented by an injunction issued out of the district court of Rush county, on December 29, 1885, in an action therein pending between the state of Kansas, on the relation of D. A. Stubbs, against the board of county commissioners of Rush county, and the limitations embraced in chapter 90, Sess. Laws 1870, being an act to enable municipal townships to subscribe for stock in any railroad. It was clearly apparent to us, upon the hearing of this case, that said action is a collusive one, and that the defendants could have had the injunction dissolved at any time upon making proper application therefor. The petition is very defective, perhaps fatally so. It does not allege when the election is to be held, in what portion of the county, or in what townships, nor does it name any railroad company to whom the subscription is to be made. It does not name in any way the townships referred to in the alternative writ, nor that there is more than one township, and its averment in that respect is: "An election is to be ordered in a portion of the county to vote bonds to a branch of the A., T. & S. F. R. R. Co." This petition was presented to the district judge of Rush county on December 28, 1885, and without notice to defendants, or appearance by them, he indorsed on the petition : "Temporary injunction allowed upon the execution of a bond to the defendants in the sum of one thousand dollars, to be approved by the clerk of the district court of Rush county, Kansas. J. C. STRANG, Judge." No summons was issued prior to the commencement of this proceeding. Instead of issuing a summons, and having the district clerk indorse thereon "Injunction Allowed," as required by the statute, the clerk issued the order of injunction. This order attempts to forbid the commissioners of Rush county from calling elections in said town ships of Garfield, Banner, Center, Union, and Belle Prairie, but is wholly unauthorized and void, because it is not issued in conformity with the petition or the order of the district judge. It names townships and a railroad corporation not mentioned in the petition; and, further, said order of injunction, even if properly issued, is no obstacle to the granting of the elections, because the statute provides that an injunction shall not operate until the party obtaining the same shall furnish an undertaking, executed by one or more sufficient sureties. No proper injunction undertaking was given prior to the commencement of this action. All proceedings had in the case pending in the district court of Rush county subsequent to January 6, 1886, the date of the service of the alternative writ of mandamus, cannot prejudice the rights of plaintiff. The other objection to ordering the elections in the several townships is also without any force. The petition was presented under and in accordance with the provisions of an act of the legislature of the state of Kansas, of February 29, 1876, entitled "An act to enable counties, townships, and cities to aid in the construction of railroads, and to repeal section 8 of chapter 39 of the Laws of 1874," and the amendments thereto. The law is the latest expression of the legislature, and the limitations in chapter 90, Laws 1870, cannot apply, or control the amount of bonds to be voted for under the elections prayed for. It is not necessary to decide whether chapter 90, Sess. Laws 1870, has any operation at this time, or whether it is wholly repealed. It is sufficient for this case to say that the petitions presented to the defendants comply, in all respects, with the provisions of chapter 107, Sess. Laws 1876, and the amendments thereto, and that, under the statute, it is clearly the duty of the commissioners of Rush county to call the elections demanded. Let a peremptory writ of mandamus issue against the defendants. (All the justices concurring.) 1. CRIMINAL LAW-TRIAL-FAILURE TO BRING PRISONER TO TRIAL-DISCHARGE. Where a prisoner is held to answer for a criminal offense, and the district court refuses to grant his application for discharge, made by him under the terms of section 221 of the Criminal Code, and instead thereof remands him to jail until bail is given, the order of the court cannot be reviewed or reversed, or the prisoner discharged, by a proceeding in habeas corpus before the supreme court. 2. SAME-CHANGE OF VENUE. Where an information was filed against E. for the offense of murder, one day prior to the commencement of the regular term of the district court for 1885, and at such May term of the court, against the objection of the state and the defendant, the court attempted to remove the case for trial to another county, in another judicial district, upon the ground that the judge was disqualified to preside on account of his prejudice; and such defendant was held to answer on bail to the district court of such other county; and thereafter the September and November terms of the district court where the information was filed were held without the defendant being tried, and in December the jury were discharged, in his absence, but while his attorneys were present, who refused to appear or answer in any way for him; and the defendant did not, at any one of the terms of said court, ask or announce himself ready for trial, but made application on the last day of the November term of the court for his discharge, because he had not been brought to trial within the time limited in section 221 of the Criminal Code: held, that the court committed no error in denying the motion, as the state announced itself ready to proceed at once with the trial, and the court decided that there was not time, during the balance of the term of court, for the trial of the case upon its merits. Original proceedings in habeas corpus. A petition was filed in this court on February 9, 1886, on behalf of William T. Edwards for a writ of habeas corpus, who is charged with murder in the first degree in killing one John Wilson on December 6, 1884. The petition, among other things, shows that on January 2, 1886, the petitioner made a written application to the district court of Sumner county, verified by his oath, to be discharged from custody, and therein alleged, among other things, that the information charging him with the offense of murder in the first degree was filed in the district court of that county on May 4, 1885, one day prior to the commencement of the regular May term for 1885 of that court; that said May terin was finally adjourned on August 17, 1885, without the petitioner having been brought to trial, and without his having made application for, or having consented to, a continuance of the action; that the next regular term of that court commenced on September 1, 1885, and was finally adjourned on October 3, 1885, without the petitioner having been brought to trial, and without his having applied for or consented to a continuance; that the next and third regular term of that court after the filing of the information. commenced on November 3, 1885, and continued for the transaction of business up to and inclusive of December 12, 1885, when the court was adjourned to January 2, 1886, (the regular December term of the district court of Comanche county having intervened, the same commencing on December 15, 1885, and ending during the same month,) without the petitioner having been brought to trial, and without his having applied for or consented to any continuance. application further alleged that from and after the commencement of the regular November term of the district court of Sumner county for 1885, up to and including the date of its adjournment on December 12, 1885, the court had ample time to have fully tried said cause, and that the court actually had ample time to have done so between November 3, 1885, and December 12, 1885 as shown by the journal and records thereof. Said Upon the hearing of the application for discharge, the court made the following findings of fact: "That the state of Kansas, by its said attorneys, has on this day, and since the filing and presentation of said application of said defendant for the con sideration thereof by the court, here announced itself ready to proceed with the trial of said cause upon its merits; but the court further finds that there is not now time, during the period allowed by law, for the trial of said cause upon its merits at the present term, owing to the fact that this is the last day of the week, commonly called Saturday, and that on the next ensuing Tuesday, to-wit, the fifth day of January, A. D. 1886, the district court of Harper county, in the same, the Nineteenth, judicial district, in the state of Kansas, is required by law to convene in regular term; and, further, that the regular panel of the jury for this term of this court were each and all, on the twelfth day of December, A. D. 1885, excused and discharged (but without the consent or objection of said defendant, he not being present, either in person or by attorney, but then being on bail to appear before the district court of Cowley county, Kansas, on the first day of the regular December, A. D. 1885, term thereof, to answer the charge contained in and by the information filed in this action against him, which had prior thereto, and over and against the protest and objections of said defendant, been erroneously, by this court, of its own motion, attempted to be transferred to said lastnamed court for trial) from further attendance upon this court for this term; and owing to the further fact that no witnesses have been subpoenaed on behalf of the state to appear and testify at this term in this cause; and the court further finds that on the twelfth day of December, 1885, at the present term of this court, the state of Kansas, by its attorney, John A. Murray, county attorney of said Sumner county, filed its motion to have the order of this court changing, or attempting to change, the venue for the trial of this action to the district court of Cowley county, in the Thirteenth judicial district, in the state of Kansas, vacated and set aside, to the end that said cause might be remanded to this court for trial, in accordance with the law of the land; and that pending the hearing of said motion, the defendant not being personally present in court, the attorneys who had theretofore appeared for said defendant, and who now appear for him in this court, Messrs. Herrrick, George & King and McDonald & Parker, each and all being personally present, were, each and ail, specifically interrogated touching the matter, by the court, and said attorneys, each and all, answered that they did not, nor either or any of them, then appear in this court for or on behalf of said defendant for any purpose whatsoever." Thereon the court found that the petitioner was not legally entitled to be discharged as by him demanded. The court further ordered the case to be continued for trial at the next regular term of court, and that the petitioner be required to enter into bail in the sum of $7,000 for his appearance at said term of the district court to answer the charge alleged against him. Thereupon the petitioner objected and excepted. On March 3, 1886, the sheriff of Sumner county made return to the writ of habeas corpus issued that he restrained the petitioner of his liberty, and retained him in custody, by virtue of a warrant issued out of the district court of Sumner county upon the information filed in that court on May 4, 1885, charging the petitioner with murder in the first degree. W. A. McDonald and George & King, for petitioner. HORTON, C. J. The petitioner claims that he is entitled to his discharge under the provisions of section 221 of the Criminal Code, which reads: "If any person, under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or information filed, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happen on his application, or be occasioned by the want of time to try such cause at such third term." We do not think the proceeding by habeas corpus the proper remedy in this case. The petitioner alleges that the district court refused his application to be discharged under the provisions of section 221 of the Criminal Code, and remanded him to custody until he should give bail, and continued the cause for trial. The order of the district court, until reversed, is valid and sufficient authority for the retention of the petitioner in custody. We cannot, in a proceeding of this character, review or reverse an order or judgment of the district court, having jurisdiction, when such order is neither void, nor in excess of its authority. Section 671, Civil Code; Ex parte McGehan, 22 Ohio St. 442. The statutes construed in the cases of Brooks v. People, 88 Ill. 327, and In re Garvey, 4 Pac. Rep. 758, do not provide for any discharge of the offense, but operate merely to set the prisoner at liberty. In this state, the statute provides for the absolute discharge of the prisoner from the offense, and therefore Illinois and Colorado decisions are not applicable. In the case of In re Dill, 32 Kan. 668, S. C. 5 Pac. Rep. 39, the petitioner was guilty of no offense, and the judgment rendered against him was void. In that case he was released from imprisonment upon that ground. But, waiving the irregularity of this proceeding, we think the ruling of the district. court was correct. The information was filed against the petitioner one day prior to the commencement of the May term of the district court of Sumner county for 1885. At the May term, against the objection of the state and the petitioner, the court attempted to remove the case for trial to Cowley county, in another judicial district, upon the ground that the judge was disqualified to preside at the trial on account of his prejudice. This order was vacated, upon the motion of the county attorney of Sumner county, on December 12, 1885. The regular terms of the district court of Sumner county for 1885 were held as follows: The first Tuesdays of May, September, and November. On account of the intervention of the district court of Comanche county, the November term of the district court of Sumner county was adjourned from December 12, 1885, to January 2, 1886, at which time the application for the discharge of this petitioner was presented. After the presentation of such application, the state announced itself ready to proceed at once with the trial. The court, however, in its findings of fact, states that there was not time during the period allowed by law for the holding of the November term of court for the trial of the case upon its merits. The state was not responsible for the discharge of the jury or the adjournment of the court on December 12, 1885, and we must assume that when it announced itself |