Oliason v. Girard, 6418

• Decision Date: 03 October 1936
• Docket Number: 6418
• Citation: 57 Idaho 41,61 P.2d 288
• Parties: C. A. OLIASON and V. A. VERHEI, Plaintiffs, v. FRANKLIN K. GIRARD, Secretary of State of the State of Idaho, Defendant
• Court: Idaho Supreme Court

61 P.2d 288

57 Idaho 41

C. A. OLIASON and V. A. VERHEI, Plaintiffs, v. FRANKLIN K. GIRARD, Secretary of State of the State of Idaho, Defendant

No. 6418

Supreme Court of Idaho

October 3, 1936

Original application for writ of mandate. Alternative writ issued. Defendant demurs. Demurrer overruled and peremptory writ granted.

Demurrer overruled. Peremptory writ issued.

Maurice H. Greene, for Plaintiffs.

The certificate of nomination, offered for filing on the 24th day of September, 1936, was offered "not less than forty days before the ensuing general election." (I. C. A secs. 33-644, 70-109; Seawell v. Gifford, 22 Idaho 295, 125 P. 182, Ann. Cas. 1914A, 1132; Cosgriff v. Board of Election Commrs., 151 Cal. 407, 91 P. 98; Ley v Dominguez, 212 Cal. 587, 299 P. 713.)

The law does not contemplate fractions of days in computing a period of time providing for an act to be done. (Cosgriff v. Board of Election Commrs., 151 Cal. 407, 91 P. 98; Mathewson v. Ham, 21 R. I. 203, 42 A. 871; Municipal Improvement Co. v. Thompson, 201 Cal. 629, 258 P. 955; Franklin v. State, 9 Okla. Cr. 178, 131 P. 183; Kelly v. Independent Pub. Co., 45 Mont. 127, 122 P. 735, Ann. Cas. 1913D, 1063, 38 L. R. A., N. S., 1160.)

W. H. Langroise, for Defendant, filed no brief.

AILSHIE, J. Givens, C. J., and Budge, Morgan and Holden, JJ., concur.

OPINION

AILSHIE, J.

On August 11, 1936, members of the Union Party, pursuant to the provisions of sec. 33-639, I. C. A., held a nominating convention at Boise, and nominated their candidates for the ensuing general election to be held November 3d. On September 24th a certificate of nomination of the candidates selected at the convention was delivered to the secretary of state for filing. At the same time filing fees of $ 140 for the candidates nominated were tendered. The secretary of state refused to file the certificate or to accept the fees, on the sole ground that the certificate was tendered one day too late, under the provisions of sec. 33-644, I. C. A., requiring such certificates to be filed "not more than sixty days and not less than forty days before the ensuing general election."

September 28, 1936, C. A. Oliason, chairman of the Union Party and presidential elector nominated at the convention, and V. A. Verhei, nominee for governor on the nominating ballot, filed a petition in this court for writ of mandate, directed against the secretary of state, praying for issuance of an alternative writ. Alternative writ of mandate issued on September 30th, commanding Franklin Girard, secretary of state, to file in his office the certificate of nomination of the candidates for public office of the Union Party, and accept the filing fees required by law to be paid by said candidates, and otherwise comply with the election statutes in reference thereto, or show cause on October 1st why he should not do so. Defendant secretary of state filed demurrer to the petition and the cause has been heard on the issues of law thus raised.

In the final analysis the case before us reduces itself to this inquiry: Does the statute (sec. 33-644), providing that a nomination certificate must be filed "not less than forty days before . . . . election," require forty days to intervene between the date of filing and election day; or may the day of filing be counted as one of the forty days?

There are two distinct lines of authorities construing similar statutes to the one we have before us and some modifications of the rules they state. (62 C. J., pp. 983-985.) The group of cases, holding that the last day for doing the act is ascertained by excluding the initial, or first, day (in this case election day) and including the last or filing date, includes Cosgriff v. Board of Election Commrs., etc., 151 Cal. 407, 91 P. 98, followed and approved in Sweatt v. Dominguez, 216 Cal. 527, 15 P.2d 151, Galusha v. Meserve, 58 Cal.App. 174, 208 P. 348, 350, Antelope Valley Union H. S. Dist. v. McClellan, 55 Cal.App. 244, 203 P. 147, In re Espinosa's Estate, 179 Cal. 189, 175 P. 896, Phillips v. Johnson, 50 N.D. 781, 197 N.W. 879, (commenting on Seawell v. Gifford, 22 Idaho 295, 125 P. 182, Ann. Cas. 1914A, 1132), and State v. Board of Deputy State Supervisors et al., 93 Ohio St. 14, 112 N.E. 136, at 137. Others to the same effect are: State v. Superior Court, 168 Wash. 176, 11 P.2d 229; Consolidated Ind. School Dist. v. Martin, 170 Iowa 262, 152 N.W. 623; State v. Dewey, 73 Neb. 396, 102 N.W. 1015; State v. Erickson, 152 Minn. 349, 188 N.W. 736; State v. Schimelpfenig, 192 Minn. 55, 255 N.W. 258; In re Ellwood City Borough's Election Contest, 286 Pa. 257, 133 A. 379, citing In re Alexander, 280 Pa. 209, 124 A. 419; see, also, State ex rel. Smith v. Marsh, 120 Neb. 287, 232 N.W. 99, 72 A. L. R. 285.

Among those holding that both days must be excluded and the full number of "clear days" must intervene are Wood v. Cowan, 68 Utah 388, 250 P. 979; Seawell v. Gifford, 22 Idaho 295, 125 P. 182, Ann. Cas. 1914A, 1132; State v. Macy, 82 Ore. 81, 161 P. 111, Jones v. Hinderer, 30 Del. 516, 7 Boyce (30 Del.) 516 108 A. 737; In re Gregg's Estate, 213 Pa. 260, 62 A. 856; Iverson v. Perlman, 137 Md. 62, 111 A. 220; Austin Nichols & Co. v. Gilman, 100 Conn. 81, 123 A. 32; and see Adkins v. Moore, 43 S.C. 173, 20 S.E. 985.

The case of Seawell v. Gifford, 22 Idaho 295, 125 P. 182, Ann. Cas. 1914A, 1132, was decided by this court in 1912, under a statute reading:

"Each candidate for office, or some qualified voter in his behalf, shall file a nomination paper in the proper office, as herein provided, at least thirty days, and not more than sixty days, prior to the primary."

Under the law as then existing, the primary was to be held on July 30th. The nomination paper was not filed until July 1st, which left only twenty-eight days intervening between the date of offering the certificate for filing and the date of election, so that, in order to hold that the certificate was offered for filing in time, it would have been necessary to count both the date of the filing and the date of election, to make the aggregate of thirty days required by the statute. This court held that such a filing would not have been "at least thirty days . . . . prior to the primary." Neither would the filing have been in time in that case, had the rule of the statute (sec. 70-109, I. C. A.) been adopted which provides that:

"The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last is a holiday, and then it is also excluded."

In the case before us the certificate was offered for filing on September 24th and the election falls on November 3d. This would leave thirty-nine days intervening between the date the certificate was offered for filing and the date set for election. The statute under which this filing is offered reads as follows:

"Certificates of nomination to be filed with the secretary of state shall be filed not more than sixty days and not less than forty days before the ensuing general election." (Sec. 33-644, I. C. A.) If we count the day on which the certificate was presented for filing in this case we have exactly forty days before election day.

The statute, sec. 70-109, I. C. A., above quoted, provides a general rule for computing time in order to determine the date on which "any act provided by law is to be done."

In Seawell v. Gifford, supra, this court, in speaking of the application of the foregoing statute, said:

"In the case under consideration, however, the statute does not fix the day upon, or the time within, which the certificate is to be filed, but declares that it shall be filed 'at least 30 days' prior to the day of the primary election, and to hold it could be filed 29 or 28 days prior to such date would be a clear disregard of the plain provisions of said statute."

It is true that the statute there under consideration, as well as the one before us now, "does not fix the day" when the certificate shall be filed. However, it does "provide by law" for doing the act of filing a certificate and likewise provides the method of determining the time at which the act shall be performed, by declaring that "it shall be filed . . . . not less than forty days before the ensuing general election." It is, therefore, clear to us that the rule for computation of time, as specified by sec. 70-109, I. C. A., is applicable in determining the maximum and minimum time within which the filing may be made under the nomination statute. (Sec. 33-644.)

In order to locate the limits of the period within which a filing may be made, we must first ascertain the date on which the election is to be held and count sixty days backward from that day to find the first day on which a filing may be made. This year the election is to be held November 3d, and the period within which nominations might be filed with the secretary of state commenced with and included the sixtieth day next prior to that date, or September 4th, and ended with and included September 24th. If we follow the mandate of the statute (sec. 70-109) in the present case, and exclude the first or initial day (election day) and include the last day, we will find that the certificate here involved was tendered for filing on the fortieth day before election day. This was in time.

It must be remembered that the statute says "filed . not less than forty days before election"; it does not say that the filing shall be prior to 40 days before election or that the act of filing shall be on the 41st day before the election; nor does it say that 40 days shall intervene between election day and the filing. In this statute it was necessary that the words not less than, at least, or other words of similar import be used because...