Leavenworth Coal Co. v. Barber

• Citation: 47 Kan. 29,27 P. 114
• Parties: THE LEAVENWORTH COAL COMPANY v. ALLEN BARBER et al
• Decision Date: 09 July 1891
• Court: United States State Supreme Court of Kansas

27 P. 114

47 Kan. 29

THE LEAVENWORTH COAL COMPANY v. ALLEN BARBER et al

Supreme Court of Kansas

July 9, 1891

Error from Leavenworth District Court.

THE opinion states the case.

Proceedings dismissed.

T. A Hurd, for plaintiff in error.

W. W Black, for defendants in error.

HORTON C. J. All the Justices concurring.

OPINION

HORTON, C. J.:

On the 2d day of February, 1889, Allen Barber and Frank Seichpine recovered a judgment against the Leavenworth Coal Company for $ 65 and costs, taxed at $ 72.20. The coal company excepted to the judgment, and on February 20, 1889, the case-made was duly settled and signed by Hon. Robert Crozier, judge of the district court of Leavenworth county. On the 20th of March, 1889, the coal company filed a petition in error in this court, and also a praecipe directing the issuance of a summons thereon.

A motion has been submitted by the plaintiffs below to dismiss the proceedings in error, under the provisions of chapter 245, Laws of 1889. (Civil Code, § 542a; Gen. Stat. of 1889, P 4642.) Chapter 245 was approved on March 2, 1889. Section 2 provides that "This act shall take effect and be in force from and after its publication in the official state paper." The act was published in the official state paper on the 20th of March, 1889, the same day as that upon which the petition in error and praecipe were filed in this court. The question therefore arises, whether the day of the publication is included or excluded, as the act provides that it shall take effect "from and after its publication." And also, the further question arises, if the day of publication is to be included, not excluded, at what precise time on the 20th of March, 1889, did chapter 245 go into force. Undoubtedly the great weight of authority is to the effect that a statute which is to take effect "from and after its passage" takes effect upon the day of its passage. (Arnold v. United States, 13 U.S. 104, 9 Cranch 104, 3 L.Ed. 671; Matthews v. Zane, 20 U.S. 164, 7 Wheat. 164, 211, 5 L.Ed. 425; Mallory v. Hiles, 4 Metc. (Ky.) 53; People v. Clark, 1 Cal. 406.) The reason usually assigned for this is, that it is in accordance with the general rule that when a computation of time is to be made from an act done, the day on which the act is done is to be included. (Arnold v. United States, supra; Mallory v. Hiles, supra.)

In Dougherty v. Porter, 18 Kan. 206, Mr. Justice BREWER approvingly cited Soldiers' Voting Bill, 45 N.H. 607, 618, where it is held "that in the computation of time from a date, or from the day of a date, the day of the date is to be excluded; but that where a computation is to be made from an act done, or from the time of an act, the day in which the act is done is to be included." To like effect are the cases of Jacobs v. Graham, 1 Blackf. 392, and Chiles v. Smith's Heirs, 52 Ky. 460, 13 B. Mon. 460. In the latter case the court says:

"It was decided by this court in the case of Woods v. Patrick, Hardin, 457, that in calculating the 30 days which were required by the statute to intervene between the lodging of the order and the commencement of the next term, to entitle the party to a change of venue, the day of depositing the order should be included. So, where process is required to be served a certain number of days before the term, the day on which the process was executed is reckoned as one of the days in the computation of the time."

Applying this rule, and the day of filing the reply and joining the issues, the day of an act done will be included. The authorities which rule that, where a statute provides it shall take effect "from and after its passage," or "from and after its publication," the date of its passage or publication is to be excluded, assent to the doctrine that a day is to deemed an indivisible point of time, and therefore that the fractions of a day must be disregarded. Under these authorities, the words, "from and after its passage," or "from and after its publication," are words of exclusion, and this construction is largely given to the word "from" so as to avoid the old, harsh rule that a statute taking effect on the day of its passage or publication is to be deemed in force from the earliest moment of that day. These authorities also hold, that there is usually no satisfactory means of ascertaining the exact hour of the passage or publication of the statute; hence, that it is public policy to hold that a statute shall not go into operation until the day after its passage or publication. (Parkinson v. Brandenburg, 35 Minn. 294, 28 N.W. 919.)

We are not in sympathy with the decisions ruling that courts of justice must not take cognizance of the fractions of a day. Lord Mansfield said:

"But though the law does not in general allow of the fractions of a day, yet it admits it in cases where it is necessary to distinguish. And I do not see why the very hour of the day may not be so too, when it is necessary and can be done; for it is not like a...