State ex rel. Burns v. Lacklen, 2

• Decision Date: 13 June 1955
• Docket Number: No. 2,No. 9419,2,9419
• Parties: STATE of Montana, ex rel. Richard W. BURNS, William S. King and Alice D. Ryniker, Relators and Respondents, v. Edward LACKLEN, as Clerk of School District, of Yellowstone County, Montana, and Sterling M. Wood, Grant Boorman, Harold Fraser, Fred Hoffman, Earl E. Tiffany, Floyd Thompson and Verlin E. Cox, as Trustees of School District , of Yellowstone County, Montana, and constituting as a whole, the Board of Trustees for said District, Respondents and Appellants.
• Court: Montana Supreme Court

Page 998

284 P.2d 998

129 Mont. 243

STATE of Montana, ex rel. Richard W. BURNS, William S. King and Alice D. Ryniker, Relators and Respondents, v. Edward LACKLEN, as Clerk of School District No. 2, of Yellowstone County, Montana, and Sterling M. Wood, Grant Boorman, Harold Fraser, Fred Hoffman, Earl E. Tiffany, Floyd Thompson and Verlin E. Cox, as Trustees of School District No. 2, of Yellowstone County, Montana, and constituting as a whole, the Board of Trustees for said District, Respondents and Appellants.

No. 9419.

Supreme Court of Montana.

Submitted May 16, 1955.

Decided June 13, 1955.

Ralph J. Anderson and Stanley P. Sorenson, Helena, for appellants. Ralph J. Anderson argued the case orally.

William G. Mouat and Lee Overfelt, Billings, for respondent. William G. Mouat argued the case orally.

JACK R. LOUCKS, District Judge.

This is an appeal from a judgment of the district court of Yellowstone County, wherein the relators below sought and obtained a peremptory writ of prohibition. Involved is the construction of R.C.M.1947, § 75-1606, relating to the nomination and election of school trustees and sections 90-401 and 90-407, prescribing the statutory rules for computing time.

The facts are undisputed and are these:

In the spring of 1954 the terms of three of the seven school trustees of district No. 2 in Yellowstone County were to expire and candidates for the offices were to be nominated. Public school district No. 2 in Yellowstone County is a district of the first class.

The law of this jurisdiction requires that an annual election of school trustees be held in each school district in the state on the first Saturday of April of each year. R.C.M.1947, § 75-1603. The first Saturday of April in the year 1954 was April 3rd and thus the day of election was April 3, 1954.

Under our statutes in districts of the first class no person shall be voted for or elected as trustee unless he has been nominated therefor at a bona fide public meeting, held in the district not more than sixty days nor less than forty days before the day of election. R.C.M.1947, § 75-1606.

The transcript on appeal reveals that three bona fide meetings were called and held in public school district No. 2 of Yellowstone County, said meetings being called pursuant to call and notice previously given to the general public. The meetings were held for the purpose of nominating candidates for the office of school trustee of the district at the annual election of April 3, 1954. Each meeting was attended by twenty or more qualified electors.

The first of such public meetings was held on the evening of February 9, 1954, in the Junior High School Auditorium located in district No. 2, at which meeting Richard W. Burns, William S. King and Alice D. Ryniker were nominated as candidates for school trustees in the district and on February 18, 1954, the names of such three nominees were duly certified to the clerk of the district by certificate that day presented and filed.

The second public meeting was held at 7:45 o'clock p. m. on February 22, 1954, in the Northern Hotel in Billings, located in district No. 2, at which meeting Sterling M. Wood, M. R. Colberg and Earl E. Tiffany were nominated as candidates for school trustees in the district and on February 24, 1954, the names of such last mentioned three nominees were duly certified to the clerk of the district by certificate that day presented and filed.

The third public meeting was held at 8:00 o'clock p.m. on February 22, 1954, in the Junior High School Auditorium in district No. 2 at which Sterling M. Wood, M. R. Colberg and Earl E. Tiffany were nominated as candidates for school trustees in the district and on the same date, namely February 22, 1954, the names of such last three nominees were duly certified to the clerk of the district by certificate that day made, presented and filed.

The public nominating meeting of February 9, 1954, was held 53 days before the day of election (April 3, 1954). Thus was the first public nominating meeting held 'not more than sixty (60) days nor less than forty (40) days before the day of election' as is prescribed by section 75-1606, supra.

To prohibit the calling or holding of any election whatever in 1954 for the purpose of selecting school trustees of district No. 2 or the placing of the names of the nominees of the nominating meetings of February 22, 1954, on any ballot and to compel the immediate certification of their own election as trustees of the district, the relators, Richard W. Burns, William S. King and Alice D. Ryniker, being the three nominees of the first nominating meeting, commenced in the district court of Yellowstone County this action against the board of trustees of school district No. 2 and the clerk of such district asserting that the second and third nominating meetings of February 22, 1954, and the nominations there made and certified are void under the provisions of R.C.M.1947, § 75-1606, claiming that such meetings were held less than forty days before the day of election.

The second and third sentences of R.C.M.1947, § 75-1606, read:

'The nomination and election of any person shall be void, unless he was nominated at a meeting as above provided * * * and his nomination certified and filed as aforesaid * * *. In the event there be held only one (1) such public meeting, and only one (1) candidate be nominated for each term to be filled then and in that event no election need be held and the clerk of such district shall certify such facts to the board of trustees of the district, acting as a board of canvassers who shall thereupon certify the election of such persons to the county superintendent of schools.'

On March 11, 1954, the district court issued an alternative writ of prohibition directing the board of trustees of the district and the clerk thereof to desist from doing or performing any of the acts complained of and directing that such board and clerk show cause on a day certain why such writ should not be made permanent.

The board and the clerk interposed a motion to quash the writ and dismiss relators' affidavit and application for a writ, which motion was based upon the records and files in the proceeding and made on the grounds, inter alia, that the facts set forth in relators' affidavit and application are insufficient to authorize the issuance of the writ. Upon the disallowance of their motion the board and its clerk made return and answer to the writ alleging, inter alia, that R.C.M.1947, § 75-1606, is invalid and violative of the State Constitution for the reasons set forth in the above motion.

A hearing was had and on March 15, 1954, the district court made and filed written findings of fact and conclusions of law which were incorporated in its judgment that day made and entered, which judgment ordered that a peremptory writ of prohibition issue against the board and clerk of the school district commanding: (1) That they desist from calling, noticing and holding an election on April 3, 1954, for the purpose of selecting school trustees; (2) that they refrain from placing the names of Wood, Colberg and Tiffany on any ballot provided for the election of school trustees for such school district; (3) that they withdraw and cancel the certificates of the said Wood, Colberg and Tiffany as regularly nominated candidates for trustees of such school district; (4) that the clerk desist from certifying to the board of school trustees any names as candidates for school trustee other than the names of the relators, Burns, King and Ryniker; (5) that the clerk certify to the board of trustees of the district acting as a board of canvassers (a) that only one legal public meeting was held within the time required by law, (b) that only the three relators, Richard W. Burns, William S. King and Alice D. Ryniker have been nominated at such meeting for the offices to be filled (6) and further commanding the board of school trustees under such certification to proceed as provided in section 75-1606 in the matter of the election of trustees for the district.

This is an appeal by the clerk and the board of school trustees of the school district from the judgment so entered against them.

In its finding of fact No. 7 the district court found 'that the meetings held at the Northern Hotel and the Junior High School Auditorium on the 22nd day of February, 1954, hereinbefore mentioned, were and each of them was held less than forty (40) days before the day of election in said School District.'

This finding presents the question determinative of this appeal, namely:

Were the public nominating meetings held February 22, 1954, in time?

This presents a simple problem in simple arithmetic. Its correct solution supplies the answer to this law suit.

'Time is computed according to the Gregorian or new style; and the first of January in every year passed since seventeen hundred and fifty-two, or to come, must be reckoned as the first day of the year.' R.C.M.1947, § 90-401. Emphasis supplied.

Under the above section of the Revised Codes of Montana of 1947, Friday, the first day of January 1954 'must be reckoned as the first day of the year' 1954 and each succeeding day thereafter had its own separate number to and including Friday, December 31, 1954, which was the last, or 365th day, of the year 1954.

A day is a division of time or a unit of measuring it. 25 C.J.S., Day, p. 1006.

The law provides: 'Fractions of a day are to be disregarded in computations which include more than one (1) day and involve no questions of priority.' R.C.M.1947, § 19-103, subd. 4. See Kelly v. Independent Pub. Co., 45 Mont. 127, 133, 122 P. 735, 38 L.R.A.,N.S., 1160, Ann.Cas.1913D, 1063.

The computations here include more than one day and involve no questions of priority, hence the above quoted provisions of the concluding sentence of subdivision 4 of section 19-103 apply.

Saturday, April 3, 1954, 'the day of election', § 75-1606, was the...