State ex rel. Sullivan v. District Court of Second Judicial Dist. in and for Silver Bow County

• Decision Date: 26 June 1948
• Docket Number: 8838.
• Parties: STATE ex rel. SULLIVAN et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

196 P.2d 452

122 Mont. 1

STATE ex rel. SULLIVAN et al. v. DISTRICT COURT OF SECOND JUDICIAL DIST. IN AND FOR SILVER BOW COUNTY et al.

No. 8838.

Supreme Court of Montana

June 26, 1948

Original proceeding by State of Montana, on the relation of Loretta L Sullivan and others, as individual, citizens of Silver Bow County, State of Montana, and as such individuals acting for and on behalf of Silver Bow County, State of Montana, against the District Court of the Second Judicial District of the State of Montana in and for the County of Silver Bow, and the Honorable William R. Taylor, Judge presiding therein, for a writ directing respondents to certify to Supreme Court the record and proceedings had and done in a cause seeking removal from office of Addis A. McGrath as clerk and recorder of Silver Bow County, Mont., pursuant to Revised Codes 1935 § 11702.

Writ issued.

H. D Carmichael, of Butte, for respondents.

CHOATE Justice.

Original proceeding. On relators' petition this court issued its writ directing the district court of the second judicial district of the state of Montana, in and for the county of Silver Bow, and the Honorable William R. Taylor, as judge presiding therein, to certify to this court the record and proceedings had and done in Cause No. 43819 in said district court.

On May 11, 1948, the relators filed in said district court and presented to the Honorable T. E. Downey, judge presiding in department No. 2 thereof, a duly verified accusation in writing for the removal from office of Addis A McGrath as clerk and recorder of Silver Bow county, Montana, pursuant to the provisions of section 11702, Revised Codes of Montana 1935.

Upon the presentation of said accusation to him, the Honorable T. E. Downey as judge of said court made and entered an order citing said clerk and recorder to appear before said court on the 22nd day of May 1948 at the hour of ten o'clock a. m. to make his answer to said accusation. Thereafter on the same day, Judge Downey made and entered an order disqualifying himself in said cause calling in the Honorable Jeremiah J. Lynch, judge presiding in department No. 1 of said district court, and transferring said cause to such department.

On May 20, 1948, Judge Lynch made and entered an order disqualifying himself from presiding in said cause and calling in the Honorable William R. Taylor, judge of the third judicial district of the state of Montana, to preside in said cause.

Judge Taylor accepted jurisdiction and on May 21, 1948, made and entered an order continuing the hearing on the citation to May 26, 1948, at which time counsel for the clerk and recorder presented a motion to quash the citation.

Motion to Quash citation. On May 29, 1948, Judge Taylor made and entered an order granting the motion to quash the citation upon the ground that it was void in that the defendant clerk and recorder was cited to appear before the court more than ten days from the time the accusation was presented on May 11, 1948, and therefore fails to conform or comply with provisions of section 11702, Revised Codes of Montana 1935.

If the day of issuance (May 11th) and the return day (May 22nd) be excluded then no more than ten full days elapsed between the issuance of the citation and the return date thereof and the citation would conform with section 11702 which provides that 'the court must cite the party charged to appear before the court at a time not more than ten nor less than five days from the time the accusation was presented.'

Section 9894, Revised Codes, provides for the return of process in actions of forcible entry and detainer, being summary proceedings, providing: 'Upon filing the complaint, a summons must be issued thereon as in other cases, returnable at a date designated therein, which shall not be less than four days nor more than twelve days from its date.'

In State ex rel. St. George v. Justice Court, 80 Mont. 53, 257 P. 1034, this court in construing section 9894, Revised Codes, held that the rule of excluding the first and including the last day as provided in section 10707, Revised Codes, did not apply to such summary proceeding and that in the computation both the first and last days should be excluded, citing in support of such holding more than thirty decisions from most able courts.

The St. George case, supra, is cited by this court with approval in State ex rel. Bevan v. Mountjoy, 82 Mont. 594, 268 P. 558, 559, holding that under the primary election law requiring nominating petitions to be filed 'not less than forty days before the date of the primary election,' a petition filed on June 7th for the primary election to be held on July 17th was too late as both the first and the last days should be excluded from the computation.

In the later case of Novack v. Pericich, 90 Mont. 91, 300 P. 240, this court followed the St. George and Bevan cases, supra, two members of the court concurring under the doctrine of stare decisis.

The above three cases are discussed by this court in Re Easterly's Estate, 97 Mont. 206, 34 P.2d 539, in which case the court commented upon subdivision 2 of section 9632, Revised Codes, requiring that process 'shall be served at least four days before the time for appearance.' While in the instant case section 11702, Revised Codes, provides that the court must cite the party to appear 'at a time not more than ten nor less than five days from the time the accusation was presented,' which brings the case at bar within the rule announced in the St. George, Bevan and Novack cases, supra, whereby both the first and last days must be excluded in computing the time.

'Further, where it is provided that a certain result shall not accrue until after the expiration of a given number of days from a stated date, then both the first and last days must be excluded, so that the full number of days will be allowed.' 52 Am. Jur., p. 343, sec. 17. See also Heuck v. State ex rel. Mack, 127 Ohio St. 247, 187 N.E. 869; Halbert v. San Saba Springs Land & Live-Stock Ass'n, 89 Tex. 230, 34 S.W. 639, 49 L.R.A. 193, and note in 15 L.R.A.,N.S., p. 686.

In view of the conflict in the decisions from other jurisdictions and the various decisions of this court holding that both the first and the last days should be excluded, we are constrained to hold that under the doctrine of stare decisis the rule followed in the St. George, Bevan and Novack cases applies to the construction of section 11702 and therefore that the trial court erred in sustaining the defendant's motion to quash the citation. Further, it would seem that the portion of section 11702 providing that the court must cite the party to appear 'at a time not more than ten nor less than five days from the time the accusation was presented' is directory rather than mandatory and that its purpose is to provide a system for the prompt and orderly dispatch of the proceedings. The provisions of our Codes 'are to be liberally construed with a view to effect their objects and to promote justice.' Sec. 4, Rev.Codes 1935.

'In many cases, statutory provisions as to the precise time * * * are not regarded as of the essence, but are regarded as directory merely' 50 Am.Jur., p. 46, sec. 23. Again: 'A statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial right of the interested persons, and as mandatory where such injury or prejudice will result.' 50 Am.Jur., p. 49, sec. 26. See also State ex rel. Jaumotte v. Zimmerman, 105 Mont. 464, 73 P.2d 548; Crane v. Board of Supervisors of Los Angeles, 17 Cal.App.2d 360, 62 P.2d 189; State ex rel. Wight v. Park City School District, 43 Utah 61, 133 P. 128; Sutherland Statutory Construction, 3rd Ed., sec. 5808, notes 9 to 11; sec. 5810, notes 4 and 5; and sec. 5816.

In State ex rel. Odenwald v. District Court, 98 Mont. 1, 38 P.2d 269, 274, this court held that the provision in section 11702, Revised Codes, providing that the court must proceed to hearing in a summary manner or trial on some 'day not more than forty days from the date on which the accusation was presented' was 'in no sense a statute of limitation against the prosecution of the charges made,' and we can see no reason why this same rule of construction should not apply to the 'not more than ten nor less than five days' provision in the same section.

Reviewing this subject at some length, the California case of Crane v Board of Supervisors of Los Angeles County, supra, states the law as follows [17 Cal.App.2d 360, 62 P.2d 193]: '* * * the authorities indicate that the specified act should be regarded as directory if it is...