Phillips v. Johnson

Johnson, J.

This is an appeal from a judgment of the district court of Oass county, directing the defendants, the trustees and the clerk of the village of North Fargo, to place the names of the plaintiffs on the ballot as candidates for the offices of trustees of said Village at the election to be held on the 18th of March, 1924. The plaintiffs are candidates for village trustees. They obtained an alternative writ of mandamus from the trial court directing the defendants to put the plaintiffs’ names on the ballot at the ensuing election, or show cause why they refuse to do so.

The defendants demurred to the alternative writ of mandamus, principally'upon the ground that plaintiffs’ nominating petitions were not filed “at least twenty days'’ prior to the election, as required by § 903, Oomp. Laws, 1913. The court overruled the demurrer, and on the 4th day of March, 1924, pursuant to an order for judgment made on the same day, judgment was entered and a writ of mandamus accordingly issued, under the seal of the court, directing the defendants to do all things necessary and proper under the law to put the names of the petitioners upon the ballot as candidates for the offices of trustees at the ensuing village election.

On the 27th of February, 1924, the plaintiffs filed nominating petitions with the clerk of the village of North Fargo, signed by a sufficient number of qualified electors, asking that the names of the plaintiffs be put upon the election ballot as candidates for village trustees at the election to be held on the 18th of March. The defendants refused to place the names of the plaintiffs on the ballot upon the ground that the petitioners were not filed “at least twenty days prior” to the election. It is contended by the defendants that § 908, supra, is mandatory and that in' computing the time, the date of the election, March 18, must be excluded and a clear period of twenty days reckoned therefrom, and that the last day on which the petitions could have been filed in compliance with the statute was February 26, 1924.

Section 903, supra, requires the filing of nominating' petitions “at least twenty days” before the election, and if petitions, otherwise proper in form and signed by the required number of electors, are timely filed, the persons named therein arc entitled to have their names appear on the election ballot. The rule as to the computation of time in this state is defined by statute and has been applied in several adjudicated eases. Section 7324, C’omp. Laws, 1933, reads as follows:

“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.”'

This statute expresses the rule adopted in a large number of jurisdictions. It is not necessary to review the decisions at length. In election as well as in other classes of cases where similar statutes pertaining to the time for performing certain acts have been construed, the rule of computation defined in § 7324, supra, has been generally applied. Cosgriff v. Election Comrs. 151 Cal. 407, 91 Pac. 98; State ex rel. Jones v. Inspectors of Election, 93 Ohio St. 14, 112 N. E. 136; State ex rel. O’Hearn v. Erickson, 152 Minn. 349, 188 N. W. 736; Omaha Water Co. v. Schamel, 78 C. C. A. 68, 147 Fed. 502; Stebbins v. Anthony, 5 Colo. 348; Coe v. Caledonia & M. R. Co. 27 Minn. 197, 6 N. W. 621.

We see no reason why the rule of § 7324, supra, should not be applied where the computation of time is necessary, regardless of ■the subject-matter under consideration, unless, expressly or by necessary implication from its’ context, the statute dealing with the subject requires the application of a different rule. It would tend to confusion and uncertainty to limit the application of this rule of computation by judicial construction, otherwise than as required by the terms or the context of the particular statute under consideration in a given case. There is nothing in § 903, supra, that renders it inappropriate •to apply the rule of § 1324 to the facts in the record.

In State ex rel. Anderson v. Falley, 9 N. D. 464, 83 N. W. 913, the court applied the rule of computation defined in § 7324, supra, (Rev. Codes 1895, § 5150) without referring to the statute, and excluded the day on which the certificate was filed, but included election day. Under the rule adopted, the relator in that case filed the certificate one day too late and was entitled-to have his name on the ballot. In Styles v. Dickey, 22 N. D. 515, 134 N. W. 702, the court says that the rule of § 1324, supra, is “a universal rule for the computation of time, alike applicable to matters of mere practice and to the construction of statutes” providing time limits for performance. In Hogg v. Christensen, 29 N. D. 8, 149 N. W. 562, this statement from Styles v. Dickey, supra, is quoted and approved.

' Counsel for the appellant rely largely upon the case of Seawell v. Gifford, 22 Idaho, 295, 125 Pac. 182, Ann. Cas. 1914A, 1132. The quotation in the brief of counsel from 9 R. C. L. p. 1081, § 92, insofar as applicable to the point under discussion, is based upon'that decision. YYe do not deem an extended discussion necessary in order to distinguish this case. It is sufficient to say that by either method of calculation, alike the one applied by us pursuant to § 1324, supra, and the one urged by the appellants here, the plaintiff in the Seawell Case filed his nominating petition too late.. It was there said in the course of the opinion that under a statute providing that the candidate must file his nominating petition “at least thirty days” prior to the election, that at least thirty days must intervene between the date of the filing and the date of the election; that is, the court excluded from the computation both the date on which the petition was filed and the day on which the election was to be held. At the time the case was decided, there was in force a statute in Idaho’ identical with § 1324, supra. The election in the Idaho case was to be held on the 30th of July and the petition was filed on the first of July and, therefore, applying the rule of the statute, and as this court applied it in State ex rel. Anderson v. Falley, without reference to the statute, it is evident that the petition was filed too late, that is, only 29 days before the election. If the Idaho decision must be construed as holding that the rule of § 1324, supra, is not applicable under the facts in the case at bar, notwithstanding the precise point was not involved or necessary to a decision upon the facts in that case, then we see no escape from the conclusion that the doctrine laid down therein is contrary to the overwhelming weight of judicial authority upon the subject.

Other questions are raised pertaining largely to matters of pleading and practice in mandamus proceedings, but they are so clearly without merit that we deem it unnecessary to notice them.

The judgment appealed from should be affirmed. It is so ordered.

Bronson, Oh. J., and Christianson, Birdzell, and Nubssle, JJ., concur.