Wood v. Cowan

• Decision Date: 02 November 1926
• Docket Number: 4504
• Court: Utah Supreme Court
• Parties: WOOD v. COWAN, County Clerk

250 P. 979

68 Utah 388

WOOD v. COWAN, County Clerk

No. 4504

Supreme Court of Utah

November 2, 1926

Mandamus by Charles E. Wood against Clarence Cowan, as County Clerk of Salt Lake County. Alternative writ discharged, and permanent or final writ denied.

Ray Van Cott, C. A. Gillette, and Harold M. Stephens, all of Salt Lake City, for plaintiff.

Arthur E. Moreton, Co. Atty., and Geo. M. Cannon, Jr., Asst. Co. Atty., both of Salt Lake City, for defendant.

OPINION

PER CURIAM.

The plaintiff, Charles E. Wood, on October 18, 1926, at 11 o'clock a. m. of that date, presented to the county clerk of Salt Lake county a certificate of nomination, signed by a requisite number of voters of the county designating themselves "Independents," in which the plaintiff was nominated for the office of sheriff of Salt Lake county to be voted for on the day of election to be held November 2 1926, and requested the clerk that the certificate be filed and plaintiff's name printed on the official ballot. The certificate is in due form. The clerk refused to accept or file it on the sole ground that it was not presented in time. Hence the plaintiff applied to this court for and was granted an alternative writ of mandate. The clerk answered, admitting the facts alleged in the petition, but justified the refusal on the ground that the certificate was not presented in time.

So far as pertinent, our election statute (section 2186, Comp. Laws Utah 1917) provides that a certificate of nomination "shall be filed not more than thirty nor less than fifteen days before election." There is a general statute (section 5843, Comp. Laws Utah 1917) 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." These are the statutes relied on by the petitioner to support his claim that the certificate was presented in time. The day of election is November 2nd. The question thus is: Was the certificate presented October 18th for filing presented not "less than fifteen days before election," fifteen days before November 2nd? In computing that time, and as the petitioner urges in accordance with section 5843, he does not call October 18th the day on which the certificate was presented for filing, the "first day," and exclude it, nor does he claim that November 2nd is the "last day" of the prescribed time or period, and as such to be included, but because of the language of section 2186, "before election," concedes that November 2nd, the day of election, must be excluded. In reaching the conclusion that the certificate was tendered not less than fifteen days before November 2nd, the petitioner excludes that day, and, counting November 1st as the first day and one day before November 2nd, and as being not less than one day before, for, as he asserts, one is less than two, then counting the consecutive days backward from and including November 1st, it is found that October 18th, by including it, is the fifteenth day, which he asserts is "not less than fifteen days" before November 2nd. If the day of the filing or presentation for filing, the day the act is performed, be regarded the first day of the period, that day, under the provisions of section 5843, would have to be excluded in making the computation. By the process employed by the petitioner, instead of calling the day on which the event is to occur the last day and the day of filing the first day, the proposition is reversed, and the first is called the last, and by such method the 18th of October under the statute may, as is asserted, be included. Thus if the premise is wrong the conclusion based thereon also is wrong.

The method employed by the petitioner is based on and is supported by the case of Cosgriff v. Board, etc., 151 Cal. 407, 91 P. 98, construing a statute identical with ours, which is followed and approved by the case of State ex rel. Jones v. Board, etc., 93 Ohio St. 14, 112 N.E. 136, and to some extent the result but not the method by the cases of Phillips v. Johnson, 50 N.D. 781, 197 N.W. 879, and State ex rel. O'Hearn v. Erickson, 152 Minn. 349, 188 N.W. 736. Thus the holding of the California and Ohio courts is that, when an act is required to be performed not less than a certain number of days before a certain event, in making the computation the day on which the event is to occur is excluded, and counting backwards every day preceding that day is counted, including the day on which the required act was performed. But the Minnesota and North Dakota courts proceed on the theory, not of counting backward, but forward, and exclude the day on which the act was performed and include the day on which the event is to occur. Thus, applying the rule of the California and Ohio courts, by calling the day of election the first day and excluding it, and then count backwards the consecutive days of October 18th, and calling that the last day and include it, October 18th would be the fifteenth day. But, as seen, the Minnesota and North Dakota courts exclude the day of the filing or the day on which the filing was tendered, here October 18th, and then count forward to and including the day of election, which here is November 2nd, and by such method of computation the same result as to the period of time is reached. We agree partly with the California and Ohio courts and partly with the Minnesota and North Dakota courts; that is, we agree with the California and Ohio courts that the day of election is to be excluded, and disagree with the Minnesota and North Dakota courts that the day of election is to be counted; and we agree with the Minnesota and North Dakota courts that the day of filing is to be excluded and disagree with the California and Ohio courts that the day of filing is to be included.

In making the computation we see no basis for the claim that the day of election is to be called "the first day," and hence for that reason excluded, or October 18th, the day on which the petition was presented for filing, the last day, and hence for that reason included. We think such a designation of a first and a last day is merely arbitrary, and a mere manipulation of figures so as to make October 18th to appear the "last day," and thus within the language of section 5843 to be included in the computation, and is merely stating a case to control the statute instead of requiring the statute to control the case or making the statute yield to the case instead of the case to the statute. On the other hand, in making the computation to include the day of election and count it as one day before election, is, as it seems to us, to fly in the face of section 2186. To say that November 2nd, the day of election, is one day "before the election" is inconsistent. And as already observed, the petitioner concedes that in making the computation the day of election must be excluded. But he says October 18th, the day of the filing of the certificate, should be included. But, as is seen, two of the cases cited and relied on by him hold that may not be done, and that the day of the filing must be excluded and not counted. If such cases be followed, and as the petitioner concedes as he does that the day of election cannot be counted, then the certificate presented by him was not presented in time. So much for petitioner's cases.

It is conceded that the statute (section 2186) is mandatory. That of similar statutes is the general holding of the courts; and that is our holding. The pertinent inquiry involves the meaning and intent of the statute. When that is ascertained the inquiry is at an end. In determining that, the decisions of courts, not only as to the method employed in making the computation, but also as to the result reached, are in irreconcilable conflict. So, to merely follow precedent, it is the question of whether the one or the other line of decisions be followed. If precedents from other jurisdictions are to be looked to and to influence our decisions, it thus becomes our duty to follow that line which we think is supported by the better reason and which best reflects the legislative intent.

In 38 Cyc. 317, it is stated:

"Where there is no positive statutory rule on the subject, the courts have, in reckoning, a designated number of days to ascertain the first or last day on which an act may or must be done, expressed themselves as being in favor of effectuating the intention of the parties by looking at the context and subject-matter of the instrument, and of so including or excluding the first and last days as to prevent a forfeiture, if possible. Either the day on which the period begins or the day on which it expires, however, must be included and the other excluded, as it is improper to include or exclude both, an exception compelling the exclusion of both days existing where a statute contemplates so many clear days, or where an act is to be done, or the period is referred to as being between two specified days.

"The rule which is most commonly adopted, and the one which is prescribed by statute in many jurisdictions, is that the time within which an act is to be done is to be computed by excluding the first day and including the last; but of course neither this nor any other rule of computation controls where the provisions of the contract or statute are clear and explicit as to time or the...