dissenting.
The following opinion was filed March 23, 1905:
2. Computing Time. In the absence of a special provision in the election laws the general statute applies, and the eight days’ time should be computed by excluding the day of filing the cer- • tificate of nomination and including the day of election. Sedgwick, J.A candidate for the office of state senator, and two candidates for the office of representative of the respective senatorial and representative districts of which Custer county is a part, and a candidate for the office of county attorney for that county, all of whom had been regularly nominated as candidates for the election of 1904, filed with the respondent as county clerk of .that county their declinations of the respectivé nominations pursuant to section 136, chapter 26, Compiled Statutes, 1903 (Ann. St. 5774). The proper committees which had been duly authorized for that purpose appointed other candidates for the respective offices, and filed with the county clerk the certificates of such appointments in due form as required by the statute. The county clerk refused to place the names of these appointees upon the official ballots, and declared his intention to place upon the ballot the names of the parties originally nominated, disregarding their declinations. This application was then made to this court for a writ of mandamus to compel the county clerk to regard the said declinations filed with him, and to place the names of the appointed candidates upon the ballot. The matter was ably presented in oral arguments and upon consideration the. writ was allowed, but owing to the urgency of the case no written opinion was filed at the time. It is thought that the case is of such importance as to call for a brief statement of the reasons that led the court to the conclusion reached.
1. The section of the statute above cited provides that when any person nominated for public office as these candidates were “shall at least twelve (12) days before the election, * * * notify the officer with whom the original certificate of his nomination was filed, in writing, *398signed by him, and duly acknowledged, that he declines such nomination, the same shall be void, and his name shall not be printed upon the ballots.” The election was on the 8th day of November, and these declinations were filed with the county clerk, some of them on the 28th day of October and some still later, so that they were not filed twelve days before the election. It was for this reason that the clerk refused to regard the declinations, and supposed it to be his duty to place these names upon the official ballot.
The statute of Pennsylvania provides that such declinations may be filed fifteen days previous to the day of election. A decision of one of the district courts of that state was read upon the argument as justifying the position of the respondent. Commonwealth v. Martin, 7 Pa. Dist. R. 666. In that case the office in question was that of state senator, and the statute required that- the declination be filed with the secretary of state. It was required that the secretary of state transmit to the commissioners of the county an official list of the candidates “fourteen days at least previous to the day of any election.” The declination was filed on the 2d of November, six days before the election. The secretary refused to recognize the declination, and the court, by Judge McPherson, sustained him in so doing. The syllabus of the decision is: “The secretary of the commonwealth must refuse to recognize a withdrawal by a nominee when such withdrawal is not presented within the time fixed by statute.” The opinion states'two reasons for the limitation fixed by their statute which requires declinations to be made fifteen days before the election. One is that the secretary of state must transmit the official list of candidates to the commissioners of each county at least fourteen days before election. This reason has no force under our statute, since the original certificates of nomination are filed directly with the county clerk and the declinations are also filed with him. The second reason suggested by the court for the limitations of the statute is the plain intention of the statute to allow a *399reasonable period for filling the vacancy. In that case the vacancy had not been filled, and to allow the declination would create a vacancy upon the ballot, unless it should be filled by another nomination after the declination had been allowed. Their statute prescribes no time within which another nomination might be made, except that it must be done before the election. The court said:'
“If a candidate desires to withdraw, he must declare his intention within the time fixed by the act, in order that his party or the body of citizens that named him may have an opportunity to supply his place. This secures fair play; for if withdrawals could be made at any time, either before the ballots were printed, or before the day of election, it is manifest that a serious temptation to fraud and trickery would be presented. A withdrawing candidate could disfranchise his party by judiciously timing the date of his disappearance, and we need not suggest the dangers that lie hid in such a possibility.”
If their statute had been more explicit, as ours is, and had provided that nominations to fill the vacancy upon the ticket must be made a stated number of days before the election, and if such nominations had actually been made in due time the reasoning of the court would have been wholly inapplicable. Our statute provides that a second nomination to fill a vacancy caused by a declination may be made at any time not later than eight days before the election. The law thus gives the proper authorities four days in which to fill the vacancy on the ticket. This gives “his party or the body of citizens that named him” four days’ time in which “to supply his place.” There can be no reason for requiring the declinations to be made more than eight days prior to the election, except for this purpose of giving an opportunity to supply the place and still have the final nominations filed with the county clerk eight days before the election. In the case at bar it seems that the declinations and the appointments to fill the places were both made upon agreement of all the parties interested, and that there was no necessity of the four days’ *400time in which to fill the vacancy. The declinations were made with the view of allowing the appointments to fill the vacancies to follow. It was thought that the law was complied with if the appointments to fill the vacancies were made the prescribed length of time before the election.
The statute of Kentucky provides that certificates of nomination shall be filed “not more than sixty and not less than fifteen days before the election.” In Hollon v. Center, 102 Ky. 119, 43 S. W. 174, it was held that “the requirement of the statute that a certificate of nomination shall be filed not more than sixty days before the election is only directory.” The court recognized the difficulty in stating a general rule by which to determine in all cases when a statute is intended as directory only, and quotes the following rule formulated by Judge Cooley:
“Those directions'which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of the business, and by a failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.” Cooley, Constitutional Limitations (7th ed.), 113.
The object of our statute is satisfied if the certificates of nominations to fill vacancies are filed eight days before the election and if the proper authortities are afforded four days, if necessary, after the original nominations have been declined, in which to fill the vacancies. The “rights of the parties interested were not prejudiced” by the failure to allow the nominating committees the full four days in which to make the substituted nominations. See authorities cited 15 Cyc. 338.
In Napton v. Meek, 8 Idaho, 625, 70 Pac. 945, the supreme court of Idaho followed the case of Commonwealth v. Martin, supra. The court, it appears, did not have access to the opinion in the Pennsylvania case, and did not *401therefore consider the reasoning upon which the conclusion 'was reached. The Idaho court gave its own reasons as folloAvs:
“One purpose for its enactment was to give the party that nominated him time to make another nomination, and have the name of such nominee printed on the official ballot, and to give the voter time to investigate the character and ability of'the person avIio takes the place of the person so declining. * * * Where a law declares in unmistakable terms that a certain act must be done before the occurrence of a certain eArent or date, to hold that such act may be done at any time would totally abrogate its provisions by judicial construction. While it is the legitimate province of courts to interpret legislation, they are not authorized to supply omissions or inject matters Avhich the legislature did not place therein. If the law under consideration is obnoxious, the remedy is with the legislature, and this court will not abrogate it by judicial legislation or decision. A law should not be repealed by judicial construction. The election laws of other states that require certificates of nomination to be filed within a certain- time have uniformly been held to be mandatory, and all the reasoning in those cases is, Ave think, applicable to the laAv requiring declinations to be filed' a certain number of days before election.”
In Idaho there seems to be, as in Pennsylvania, no limitation upon the time for making appointments to fill vacancies caused by a declination of a nomination, except that the vacancy must be filled before the election takes place. In such case, as already pointed out, there is reason for a mandatory rule limiting the time for filing declinations ; but if the legislature provides Avhat shall be a reasonable time for making appointments to fill the vacancy, and prescribes that such appointments shall be considered in time if made eight days before the election, and if the declinations are in fact made in ample time to give the proper authorities sufficient opportunity to substitute other nominations, and the nominations are made & suffi*402cient time prior to the election to satisfy the statute in that regard, the reasoning' of the Idaho court upon this point does not seem to apply.
2. It urns strenously contended that the appointments to fill the vacancies were not made the prescribed length of time before the election. It is undoubtedly true that the county clerk would have been justified in refusing to receive the declinations and place the names of the appointees upon the ballot, if the appointments to fill the vacancies were not made eight days before the election as the statute provides. In the statute of Pennsylvania there is a provision that, in counting the time of this limitation, the day upon which the declinations or nominations are filed shall be excluded and the day of election included in the calculation. In the absence of such a provision in our act it is to be presumed that the; legislature intended that it should be governed by the general sí a. tute which provides: “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.” Code 895. This was said in McGinn v. State, 46 Neb. 427, “To establish a uniform rule, applicable alike to the construction of statutes and to matters of practice.” These appointments were made on the 31st day of October, and by the above rule of computation were made eight days before the election.
Writ allowed.