Petition for rehearing denied September 27, 1940 ON PETITION FOR REHEARING In order not to delay unnecessarily the further proceedings in this matter in the circuit court, a petition for rehearing filed on behalf of Mr. Zimmerman was orally denied September 27, 1940, and the rendering of a written opinion was deferred until this time.
In the petition it is argued that this court, in computing the time within which a contestant shall serve notice of contest, has in effect overruled numerous precedents and established a new rule of computation.
With regard to the provision in § 36-802, Oregon Code 1930, that the contestant must give notice "within five days from the time said person shall claim to have been nominated", our former opinion stated:
"It seems clear that with reference to candidates for nomination at a primary election the time when any one of them claims to have been nominated must be the day of the primary election." *Page 100
In reaching the conclusion that the notice here involved was served and filed within the statutory period, we observed:
"Within five days after primary election day the plaintiff was required to serve and file his notice of contest. Computing the time by excluding the first day on which the notice of contest could lawfully be filed, which was the eighteenth day of May, 1940, the five days did not expire until May 23, 1940; and, as the notice of contest was filed on May 22 and served on May 23, 1940, it was both filed and served within the prescribed time."
It is not within the contemplation of the law (§ 36-802,supra) that election contests may be initiated on election day. The polls are not closed until eight o'clock in the evening of that day. Moreover, May 17, 1940, the day on which the primary election was held, was a legal holiday (§ 57-1104, Oregon Code 1930) and consequently a non-judicial day (§ 28-1703, Oregon Code 1930) and a day on which the sheriff's office (§ 31-301, Oregon Code 1930) and the county clerk's office (§ 31-203, Oregon Code 1930) were not open for the transaction of business. Therefore, it is apparent, as stated in our former opinion in this case, that the first day on which the notice could legally be served and filed was May 18, 1940.
In computing time pursuant to § 7-109, Oregon Code 1930, this court has invariably excluded the first day on which an act could be done, and consequtntly, since May 18, 1940, was the first day on which the acts of serving and filing notice of contest could be done, that day should be excluded when computing the five days within which to initiate a contest.
In the case before us we are not concerned with the computation of time from the doing of a certain act, *Page 101 but from a fixed date. The importance of this distinction is apparent from a reading of Boothe v. Scriber, 48 Or. 561,87 P. 887. Involved in that instance was a computation of time in reference to excepting to the sufficiency of sureties on an undertaking, and to the time within which a transcript should be filed. In computing the time within which the respondent had to except to the sureties, the day on which the undertaking was served was excluded, and the following day counted. To determine the time within which the transcript on appeal should have been filed, the court excluded the first day on which it could legally have been filed. The following excerpt from the opinion therein makes clear the distinction above mentioned:
"Now, the undertaking was served on the twenty-fourth of August. Computing the time for excepting to the sufficiency of the sureties, according to the rule stated, the defendant had all the twenty-ninth in which to file such exceptions. The appeal, therefore, was not perfected until the close of that day. Within thirty days thereafter, the appellant was required to file his transcript. Computing the time by excluding the first day on which the transcript could lawfully have been filed, which was the thirtieth of August, the thirty days did not expire until the twenty-ninth of September; and, as the transcript was filed on that day, it was within the time."
Similar holdings are announced in Pringle Falls Power Companyv. Patterson, 65 Or. 474, 128 P. 820, 132 P. 527; In re Losie'sEstate, 156 Or. 207, 64 P.2d 525, 66 P.2d 1175; andSherwood v. State Industrial Accident Commission, 164 Or. 674,103 P.2d 714.
In the instant case this court applied the rule laid down inBoothe v. Scriber, supra, and followed in the subsequent decisions hereinabove cited, that the first day on which an act could be done was to be excluded *Page 102 from computation of the time allowed for doing such act, with the result that the first day on which the notice of contest herein could have been served and filed, to-wit, May 18, 1940, was not counted as one of the five days allowed for the service of notice of contest.
It was not the intention of this court in the preceding opinion herein to overrule its former decisions as to the computation of time within which an act is to be done, nor to extend to computation of time in other matters the rule which has been applied to the computation of time for giving notice of appeal to the supreme court. Many of the adjudications cited in the prior opinion have reference to such latter mode of computation, which has been adhered to, in regard to appeals, on the ground ofstare decisis: In re Andersen's Estate, 101 Or. 94,188 P. 164, 198 P. 236.
The other matters referred to in the petition for rehearing were fully covered in our former opinion and need not again be discussed. For the reasons herein expressed the petition for rehearing was denied.
ROSSMAN and BEAN, JJ., not participating. *Page 103