delivered the opinion of the Court:
On the 9th day of November, 1882, Augustus W. Cowan was declared elected county treasurer of Livingston county. Zimmerman, the defeated candidate, filed a petition in thе county court of Livingston county, on the 9hh day of December following, to contest the election, under section 113, chapter 46, Eev. Stat, 1874, page 464, which dеclares: “The person desiring to contest such election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk of the proper court a statement in writing, setting forth the points on which he will contest the election, which statement shall be verified by affidavit in the same manner as bills in chancery may be verified. ” Section 114 provides: “Upon the filing of such statement summons shall issue. ” To the petition Cowan interpоsed a plea in bar, in which he in substance set up that Zimmerman did not begin his contest within thirty days after he was declared elected; that the petition was not filed until after business hours, on the 9th day of December, after the hour of six o’clock P. M. of that day. The plea in bar, on motion, was set down for a hearing, and upon argument the court held the plea sufficient, and entered an order dismissing the petition.
It is conceded that if the petition had been filed • before six o’clock P. M. on December 9, it would have been within the thirty days prescribed by the statute; but it is contended that the thirty days expired at six o’clock,—the time the statute аllows the clerk to close his office. This position is predicated mainly on section 6, chapter 25, Piev. Stat. 1874, which provides that clerks of courts “shall kеep their offices open and attend to the duties thereof from eight o’clock A. M. to six o’clock P. M. of each working day. ” This provision of the statute requiring the clerks to keep their offices open from eight in the morning to six in the afternoon was enacted in 1874. Prior to the act to revise the law in relаtion to clerks of courts, approved March 25, 1874, we had no statute fixing an hour when the office should be opened or closed. Before that time the statute required the clerks to keep their offices at the county seat, to take an oath faithfully and impartially to discharge all the duties pertaining to the office, and to enter into bond conditioned for the faithful discharge of the duties of the office; but as to the time of opening or closing the оffice the statute was silent. It was doubtless supposed that the oath of office and the bond were a sufficient guaranty that the office would be opеn at all reasonable hours for the transaction of business, and such was the ease for many years, as we must presume, or the legislature would have acted on-the subject sooner.
But the question presented is, what was the object of the amendment adopted in 1874? Had the county and circuit clerks kept their offices open more hours in the day than the wants of the people demanded? Were the accommodations of the public in these offices so much more than the actual necessities demanded that the legislature was called upon to act, and declare that these officеs should not be open for the transaction of business more than ten hours in twenty-four ? Or, on the other hand, had the clerks failed, in some counties, to keep open the offices a sufficient number of hours to enable the people to transact their business, so that the legislature was called upon to рrovide by law that these offices should at least be open at eight in the morning and remain open until six in the afternoon? We believe the latter view to be the more reasonable, and the one we are inclined to adopt. There is nothing in the act which seems to have been intended to prevent а clerk from opening his office at six in the morning and keeping it open until twelve at night, for the transaction of business, if he saw proper; but the purpose of the law, no doubt, was to compel the clerks, under all circumstances, to open the office as early as eight in the morning and not to close before six in the afternoon. The mere fact that a clerk is required to keep his office open from eight A. M. to 6 P. M. can not, under any reasonable сonstruction, be held to render the official act of the clerk before or after those hours illegal. Under the statute we think the clerk may perform аny official duty, if he desires, before eight o’clock A. M. or after six o’clock P. M., as well as between those hours. Indeed, it id often necessary, in order to a proper dispatch of business, for courts to hold sessions at night. This can not be done without a clerk, and if the clerk has no authority to. perform official duties after six o’clock, courts would be powerless to transact much of the business upon the dockets. Surely the legislature did not intend by the act to retаrd, hinder or delay the business in courts, and yet if the construction contended for should be adopted such would» be the practical effect of the law. Whеn the legislature declared that the person desiring to contest the election shall, within thirty days after the person whose election is contested is declared elected, file with the clerk a statement, in writing, setting forth the points, a day, as here used, was intended as an ordinary day of twenty-four hours. Had a shortеr period been contemplated, or a day other than an ordinary day been intended, other and different language would have been employеd to express that intention. Here the statement was required to be filed with the clerk within thirty days. This included the whole of the 9th day of December, which would-not expirе until midnight of that day. The People v. Hatch,
It is also contended that the right of action is barred because summons did not issue on the day the statement in writing was filed. In Dale v. Irwin,
It has, however, been suggested that as no bill of exceptions is in the record, the questions we have considered do not properly arise. The only question presented by the record is as to the sufficiency of the plea interposed by Cowan. No bill of exceptions is necessary to preserve the plea in the record, as all thе pleadings in the case are a part of the record. The only object of a bill of exceptions is to preserve in the record such mattеrs as occur during the trial which are not a part of the record. The plea was set down for argument, and the court sustained it. No bill of exceptions was required to review this action of the court on the plea.
The judgment of the county court -will be reversed, and the cause remanded.
Judgment reversed.