16 Colo. 462 | Colo. | 1891
delivered the opinion of the court.
This was a contested election case under the act of April 10,1885. Session Laws, p. 193. The conte'stor having filed, his statement and served his summons, the contestee appeared and, first bv demurrer and afterwards by answer, challenged the jurisdiction of the court over the proceeding. The grounds of objection to the jurisdiction of the court were: First, that the proceeding was tried and determined by the county court instead of by the county judge; second, that the written statement of contest was not filed in the office of the clerk of the county court within ten days after the day when the votes were canvassed.
1. The act of 1885, supra, is somewhat ambiguous as to whether the county judge or the county court shall exercise jurisdiction in contested election cases of county officers. Upon careful consideration of its various provisions from section 13 to section 22 inclusive, we are satisfied that the county judge sitting in term time in his regular capacity as the county court is invested with jurisdiction to try and determine such election contests. Whether the county judge sitting in vacation may or may not exercise such jurisdiction, we need not now determine. The court did not err in overruling the challenge to its jurisdiction on the ground that the proceedings were had before the county court instead of the county judge. •
2. From the record it appears that the votes were can
In a recent contested election case under the act of 1885, Mr. Justice Hayt, in delivering the opinion of this court, used the following language: “The proceedings upon an election contest before the county judge, under the statute, are special and summary in their nature; and it is a general rule that a strict observance of the statute, so far as regards the steps necessary to give jurisdiction, must be required in such cases. * * * The act is not only special in character, but it furnishes a complete system of procedure within itself. * * * It provides for a written statement as the basis of the proceedings.” , See Schwarz v. Co. Court Garfield Co., 14 Colo. 47, 48, and authorities there cited.
In McCrary on Elections, 2d edition, sec. 276, it is said: “ A statutory provision requiring notice of contest to be given within a given time from the date of the official count, or from the declaration of the result, or the issuing of the certificate of election, or the like, is peremptory, and the time cannot be enlarged. * * * And it may be added that there is the strongest reason for enforcing this rule most rigidly in oases of contested elections, because promptness in commencing and prosecuting the proceedings is of the utmost importance, to the end that a decision may be reached before the term has wholly, or in great part, expired.”
It has been held that where a rule to plead expires on Sunday the party has the next day in which to plead. But
There is, undoubtedly, some conflict of authority in respect to the rule by which time as applied to statutes is to be computed. The question has sometimes been resolved by considering whether, from the nature of the case, a rigorous or liberal construction should be given. See opinion by Chief Justice Tilghman in Sims v. Hampton, 1 Serg. & Rawle (Penn.), 411.
In Kansas, for the purpose of allowing a party to redeem his lands from a tax sale, and in Pennsylvania, for the purpose of enabling a party to perfect an appeal, a method of computing time has been adopted which excludes the last day when it falls on Sunday. English v. Williamson, 34 Kan. 212; In re Goswiler, 3 Pen. & Watts, 200. In Massachusets, a similar rule has been declared for the purpose of preventing the forfeiture of. life insurance policies. Hammond v. Am. Mut. Life Ins. Co., 10 Gray, 306. But the latter case, like others cited in the brief of counsel for appellee, pertains to the construction of contracts rather than statutes. When the computation of time under statutes becomes necessary, an entirely different rule prevails in Massachusetts. See Cooley v. Cook, 125 Mass. 408, where
The case of Haley v. Young, 134 Mass. 366, was a bill in equity to redeem land from a mortgage. The last day of the three years fell on Sunday. The court in its opinion, referring to the Life Insurance Case in 10 Gray, supra, used the following language: “ It is said that at common law, when the tim§ for the performance of a contract according to its terms expires on Sunday, a performance on the following Monday is good. But this rule, whatever may be the extent of it, has not been applied to acts which by statute are required to be done within a time therein limited.”
The Massachusetts rule for computing time under statutes is fully sustained by the Mew York cases. The case of The People ex rel. v. Luther, 1 Wend. 42, related to the redemption of lands sold under execution. The last day of the fifteen months happening on Sunday, an offer to redeem on the next day was held to be too late. So in Ex parte Dodge, I Cowen, 147, where the time fixed by statute within which an appeal might be taken was ten daps, and the last day fell on Sunday, the court said: “ Sunday has in no case, we believe, been excluded in the computation of statute time.”
The case at bar involves the construction of section 14 of the act of 1885, supra, as a statute of limitations upon a summary proceeding. There has been much discussion whether the statutory period for commencing actions or proceedings should be held to include or to exclude the first day; and the decisions upon this subject have generally been arrived at by considering whether the time begins to run from, or after an act done, ox from or after a particular day. Wood on Lim., p. 95 et seq.; Arnold v. United States, 9 Cranch, 120; In re Tyson, 13 Colo. 489.
The statement of contest not having been filed within the time required by the statute, the court below erred in entertaining jurisdiction of the case. The judgment is accordingly reversed and the cause remanded with directions to the county court to dismiss the proceeding.
Jdmersed.