State Ex Rel. Earley v. Batchelor

The case of State ex rel. McQuesten v. Hinkle, 130 Wash. 525,228 P. 299, is controlling, in so far as it laid down the rule that certain public offices may close at noon on Saturdays. In the case cited, it would seem that Saturday was the last day Mr. McQuesten could have filed his declaration of candidacy for the office he sought, and, if the office of the secretary of state lawfully closed at noon on that day, the filing on Monday was, of course, too late. I agree with the majority as to the application of the case to the facts now before us.

In the case at bar, the election will be held November 3, 1942. Mr. Martin sought to file his declaration of candidacy with the port commission on the afternoon of Saturday, October 3rd, several hours after that office had closed for the day. Counting November 3rd, election day, as one of the thirty days comprising the statutory period, thirty days before the election would bring us to Monday, October 5th. As stated in the majority opinion, the statute provides that declarations of candidacy "shall be filed not more than sixty days and not less than thirty days prior to the day of election."

In the case of State ex rel. Evans v. Superior Court,168 Wash. 176, 11 P.2d 229, this court directly held that, in computing the time within which a petition that a charter amendment be submitted to the voters of a municipality, the day of election should be included within the statutory period, which, as shown by the opinion, was "not less than forty-five days before the date" of the election. In my opinion, the case last cited is controlling here, unless we directly refuse to follow it, and requires that November 3rd, election day, be included within the thirty-day period. In my opinion, the fact that in the Evans case the day of the election was not a legal holiday is unimportant.

It seems to me that it might well be argued that a filing on the thirtieth day prior to the election (including the election day, as above stated) should be held to be a filing not less than thirty days prior to the election, as thirty days is not less than thirty days. Cosgriff v. Board of Election Commissioners,151 Cal. 407, 91 P. 98; Mathewson v. Ham, 21 R.I. 203,42 A. 871; State v. Hunter, 134 Ark. 443, 204 S.W. 308.

According to the chronology adopted by the majority, the thirtieth day, which marked the limitation of the filing of declarations of candidacy, was Sunday, October 4th. The majority, for the purpose of computing the thirty-day period, reckon backward from November 3rd, election day, but, in estimating the effect of the count, it should be considered from the standpoint of the prospective candidate, the beneficiary of the statute, who was counting forward, not backward. As according to the majority the thirtieth day, October 4th, fell on Sunday, the majority conclude that the count back from election day should run to thirty-one days, instead of thirty days, and make Saturday, October 3rd, the last day within which a filing could be accepted. Adopting this theory of computation for the sake of argument, I believe that the majority reach an incorrect result.

Rem. Rev. Stat., § 150, reads as follows:

"The time within which an act is done, as herein provided, shall be computed by excluding the first day and including the last, unless the last day is a holiday or Sunday, and then it is also excluded."

The statute providing for the filing of declarations of candidacy grants a certain limited time to prospective candidates to make such filings. The act of filing is an affirmative act to be taken by the individual. Under the law, this act may be performed not less than thirty days prior to the date of the election. True, in order to compute this period, the election date is the starting point, whether it be counted or not, but in my opinion that does not mean that the time within which a declaration may be filed is computed backwards, with, to me, the extraordinary result that, when the thirtieth day falls on Sunday or a holiday, one day is added to the thirty-day statutory period. A prospective candidate has a certain number of days within which to file his declaration. This period is the subjectmatter of the statute. The thirty and sixty day counts are merely to fix the limitations of the periods within which a candidate may file. The majority stress the shadow, to the detriment of the substance.

If the last day accorded a prospective candidate by statute falls on a Sunday, it seems to me clear that the statute applies and his filing on the following Monday is valid. The law should not be so construed, in cases of doubtful meaning, as to limit the period within which filings may be made, but rather to extend the same, as it is, of course, the purpose of the law to permit ample opportunity for the filing of declarations of candidacy. The filing of the declaration is the "act" referred to in § 150. Certainly the computation of the thirty days results in placing an end to the period within which that act may be done. The last day of the thirty-day period fell on Sunday. In my opinion, under § 150, that gave the candidate desiring to file the following Monday within which to accomplish that act.

In the case of State v. Levesque, 5 Wash. 2d 631,106 P.2d 309, the history of § 150 was discussed, and it was held that the first portion of the section applied to the filing of a criminal charge, as well as to limitations in civil actions. I am convinced that the section also applies to such a time limitation as that with which we are here concerned.

It seems to me that the law is more logically construed by holding that Mr. Martin could file his declaration on Monday, twenty-nine days prior to the election, than by holding that, instead of having a period ending "not less than thirty (30) days prior to the election," this period, as to him, was extended to thirty-one days, as held by the majority.

It must be admitted that some of the authorities cited by the majority support the conclusion reached, but they are not numerous and, for my part, I am not inclined to follow them.

In the case of State ex rel. Anderson v. Falley, 9 N.D. 464,83 N.W. 913, the supreme court of North Dakota, in considering a question similar to that which I am now discussing, called attention to the fact that, under the North Dakota law governing elections, the thirtieth day prior to the general election would always fall on a Sunday, and that the legislature must have known this and could not have intended that the period would be twenty-nine days instead of thirty days. It seems to me just as reasonable to suppose that the legislature, knowing the law governing holidays, would have been of the view that the count back from the election day should be twenty-nine days, instead of thirty-one days, as manifestly it must be either one or the other. It is the intention of the law that a candidate have the full period between "not more than sixty (60) days and not less than thirty (30) days prior to the day of election" within which to file his declaration. I see no reason for construing the law against the prospective candidate. The act was passed for his benefit, and for the benefit of the public. The time allowed between the close of the filings and the date of the election is amply adequate to print the ballots and set up the election machinery, and, indeed, to settle questions concerning the printing of the ballots, such as that with which we are now concerned.

In 29 C.J.S. 206, Elections, § 137, referring to the filing of certificates of nomination, the rule is laid down that the statute should be liberally construed, attention being called to the fact that under some statutes the courts have discretion to determine whether an improperly filed certificate should be received. As to the time of filing, however, the rule is laid down, as noted by the majority, that statutory provisions with regard to the time of filing a certificate are regarded as mandatory. I agree with this principle, it being my view, however, that, even under a strict construction of the law when the last day for filing falls on Sunday, the prospective candidate may file upon the following day.

As in all of these cases, time presses, and an early decision is necessary. For the reasons stated, I dissent from the conclusion reached by the majority. In my opinion, the order under review should be affirmed.