152 Minn. 349 | Minn. | 1922
Petitioner in this proceeding is a resident and legal voter of Hen-nepin county and eligible to the office of representative in the
The filing affidavit was in form a compliance with the statute on the subject, and was mailed to the auditor on May 10, 1922, the last day for filing, but was not received at the auditor’s office until the following day; and that must be regarded as the date of filing. Appleton Mill Co. v. Warder, 42 Minn. 117, 43 N. W. 791. It is not important that it was deposited in the United States post office within the period fixed by the statute. It was not filed until it reached the office of the county auditor.
G. S. 1913, § 339, under which this filing was made, provides that the affidavit of a candidate shall be filed in the proper office “at least forty days before the primary election,” and if so filed the candidate thereby becomes entitled to a place on the election ballot. The rule for the computation of time under a statute like this is correctly stated in Village of Excelsior v. Minneapolis & St. P. Sub. Ry. Co. 108 Minn. 407, 120 N. W. 526, 122 N. W. 486, 24 L. R. A. (N. S.) 1035, 133 Am. St. 455. The day on which the act is performed must be excluded and the day on which the event is to happen or take place included. The rule so stated is in harmony with G. S. 1913, § 9412, subd. 21. Applying it to the facts here presented petitioner’s affidavit was filed one day late. It was filed on May 11, the day it was received by the auditor, and the primary election occurs on the nineteenth day of June. It was therefore ineffectual as an initiation of petitioner’s candidacy.
But it is contended that the statute has been given a construction and application by officers charged with its enforcement which renders the filing on the eleventh valid; that such officers had frequently accepted and acted upon such filings coming through the
This disposes of the questions; presented. The , petitioner’s affidavit was not filed in time, and he is not entitled to a place on the primary ballot. The order to show cause is therefore in all things discharged.