156 N.E. 138 | Ohio | 1927
Did the electors have the right to withdraw their names from the remonstrance at any time within the 30-day period allowed by Section 4736, General Code, for the filing of the remonstrance? And under Sections 4736 and 10216, General Code, could the electors exercise such right of withdrawal upon the Monday following the thirtieth day, which fell upon a Sunday?
These two sections of the Code read as follows:
"Sec. 4736. The county board of education may create a school district from one or more school districts or parts thereof, and in so doing shall make an equitable division of the funds or indebtedness between the newly created district and any districts from which any portion of such newly created district is taken. Such action of the county board of education shall not take effect if a majority of the *252 qualified electors residing in the territory affected by such order shall within thirty days from the time such action is taken file with the county board of education a written remonstrance against it. Members of the board of education of the newly created district shall be appointed by the county board of education and shall hold their office until the first election for members of a board of education held in such district after such appointment, at which said first election two members shall be elected for two years and three members shall be elected for four years, and thereafter their successors shall be elected in the same manner and for the term as is provided by Section 4712 of the General Code. The board so appointed by the county board of education shall organize on the second Monday after their appointment."
"Sec. 10216. Unless otherwise specifically provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; except that the last shall be excluded if it be Sunday."
It has been repeatedly held in this state that persons who have subscribed their names to petitions may withdraw their names therefrom at any time before official action is taken thereon. Hays v. Jones,
It is true that the earlier Ohio cases above cited, as pointed out in County Bd. of Education of Putnam County v. Bd.of Education,
Could the withdrawals of signatures be made upon the thirty-first day when the 30-day period terminated upon a Sunday? The plaintiffs in error contend that such action is expressly authorized by Section 10216, General Code, above quoted. The lower courts apparently held that Section 10216 could not authorize such action, for the reason that the section is incorporated in Part Third of the General Code, and hence has no application to Section 4736, which is incorporated within Part First of the General Code. Whether a statute has general application, or only an application limited to that particular portion of the Code in which it is placed, must evidently be determined by the content of the statute, and we therefore proceed to consider what that content is.
As originally enacted, the section was one of miscellaneous provisions contained in chapter 4 of the "General Provisions Applicable to the Whole Code," enacted in 51 Ohio Laws, 57 (pages 158 and 160, Section 597). It then read as follows:
"The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded."
When the statute was recast in practically its present form, in 1880 (Revised Statutes, Section 4951), the words "as herein provided" were eliminated, and the statute was later placed under the chapter "General Provisions," in Part Third of the General Code. In the original enactment the section clearly applied only to acts to be done under *255
the Code of Civil Procedure, for it expressly stated "as herein provided," and was placed under the heading, "General Provisions Applicable to the Whole Code." 51 Ohio Laws, page 158. This was the specific holding in the early cases.Paine v. Mason,
In regard to the computation of time there is considerable authority to the effect that where no contrary intent appears, and a given number of days is allowed to do an act, whether by rule of court, judicial order, or statute, if the last day falls on Sunday the act may be done upon the day following.Simkin v. Cole (Del.Super.), 122 A. 191; Austin, Nichols Co. v. Gilman,
Sometimes it is held that the rule of time computation, which allows performance on Monday of an act required to be done within a given time, when the last day of the period falls on Sunday, applies only to matters of practice and not to construction of statutes. McGinn v. State,
In a note to be found in 7 Ann. Cas., 325, the latter version of the rule is said to be supported by the great weight of authority. State v. Elson,
Surely no more definite expression of legislative intention could have been made by the General Assembly than its action in striking out the words, "as herein provided." That seems to us to evidence deliberate intention that the section should no longer be construed as applying to acts done under the Code of Civil Procedure alone, nor under the statutes generally, but should be construed as a general provision relating to all acts required *258 and permitted by law to be done within a time certain.
While no express requirement of the Code compelled these plaintiffs to withdraw their names from the remonstrance within a given time, yet as the statute specifically set the 30-day period upon the filing of the remonstrance it did compel withdrawal to be made within that period, and hence the withdrawal was required by statute to be made within the 30 days, unless the last day fell upon a Sunday, in which case it could be done upon the following Monday.
We think the question is concluded for this court by the case of State v. Elson, supra, where the court held that the first day should be excluded and the last day should be included in the period in question, although the court had before it a case arising under the fish and game laws, which were incorporated in part first, the political subdivision of the General Code. In other words, the court held that the rule stated in Section 10216, General Code, found in part third, applied to provisions which were in the political subdivision, part first of the General Code. The court in the opinion, at page 495, 83 N.E. 906, adverting to the statute, states the following:
"It must, we think, be conceded, in obedience to the clear weight of authority, that in the absence of language compelling the application of a different rule, the established general rule governing the computation of time, whether at common law or under the statute, is that the first day of the period named is to be excluded, and the last-named day is to be included, and that this rule applies alike to *259 all provisions for the computation of time whether in civil or criminal cases. In this state it is provided by Section 4951, Revised Statutes (Civil Code), that: 'Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday, it shall be excluded.' True this provision applies in terms, only to the computation of time within which an act is required by law to be done; but we can see no good or sufficient reason, nor has any been suggested, why the same rule of computation should not be applied in computing the time within which an act is permitted by law to be done. The mode of computing time, in any particular case or class of cases, is of far less importance than that there should be some established and uniform rule on the subject. Obviously, it is not for the public good, nor in the interest of the due administration of justice, that there should be two rules, or that the rule should be different or less certain in criminal than it is in civil cases. In our opinion this rule of the statute should be followed and applied in the interpretation and construction of all statutes, save those where the language of the provision as to time, itself clearly forbids it."
It will be observed that the statute construed in theElson case, which was the form of the statute as found in Section 4951, Revised Statutes, while not a verbatim copy of the present section, is almost identical therewith in words, and is in fact identical in content. We are unable to reconcile the holding in the Elson case with the decision in the case ofKerr v. Keil, supra, which arose after *260
the revision of 1880 and was a memorandum opinion based simply upon the holding in the McLees case,
Being of the opinion that the rule as announced in theElson case is supported by the weight of authority and by the present form of the statute, we conclude that the 163 names were properly withdrawn from the remonstrance, and within due time, that the county board's action was not nullified by the filing of the remonstrance, that the district created stands, and that the school board must be permitted to act.
Judgment of the Court of Appeals reversed, and the decision in Kerr v. Keil,
Judgment reversed.
MARSHALL, C.J., DAY, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur. *261