dissenting.
The only question before the court is whether or not ORS 255.211 requires 70 full days to elapse between the last day for filing pamphlet material and the day of the election. The statute reads:
“(1) Not less than 70 days before the regular biennial general election, the state executive committee or managing officers of any political party or organization having nominated candidates may file with the Secretary of State:
urn # # # # ??
The petitioner contends that when he filed his material on the seventieth day before the election, he was filing “not less than 70 days before the election,” as the statute demands. The Secretary of State contends that such a method of counting, while possibly desirable, does not satisfy ORS 255.211.
The majority applies ORS 174.120 to the facts here. ORS 174.120 specifically provides a method for the counting of time within which an act is to be done. It makes no reference to the various statutes which require a certain time to intervene between events.
An illustration will show what is meant by ORS 174.120. Suppose a judgment is entered on July 1, 1960. The party desiring to appeal has 30 days within which to file his notice of appeal. Omitting the day the judgment was filed (July 1) and counting 30 days, beginning with July 2, July 31 is the thirtieth day *586•within which the notice can be filed. This means all day July 31. A notice filed at any time on the thirtieth day is filed within 30 days because ORS 174.120 provides that an act may be done within a given number of days, obviously including all of the last day.
In Beardsley v. Hill, 69 Adv Sh 1023, 219 Or 440, 348 P2d 58, the court settled the method of counting time. That was all that Beardsley v. Hill, supra, decided. There is now no controversy about the method of computing time. The date of the precipitating event is excluded, and all other days are counted. Beardsley v. Hill, supra, was so understood by both parties to the case at bar, and is so understood by the majority and the minority in the instant case. The majority can take no refuge in the Beardsley case. The Beardsley case simply eliminated the error that had crept into the counting of days under some conflicting earlier decisions. Some earlier cases had stretched 30 days to 31 days by excluding both the day of the precipitating event and the day thereafter. If the cases overruled by the Beardsley case were followed in the matter at bar, 71 days would have to intervene between the last day for filing and the day of the general election. No one suggests this result.
Turning to the matter at bar, ORS 255.211 does not provide that the tender of pamphlet material may be received within 70 days of the election date. The material must be filed within a period which expires not less than 70 days before an election. The basis of this dissent is the reading of ORS 255.211 to mean that the material must be in the Secretary of State's office not less than 70 days. If the statute means literally what it says, then the 70 full days constitute a proscribed period, within which material cannot be filed.
*587The majority cites a number of decisions from other courts. If the matter were one of first impression in Oregon, a case could be made for the adoption of the rule arrived at in our sister states, even though the reasons given are not uniformly clear. These cases hold that if the filing period expires a given number of days before an election, the first day of the proscribed period is also the last day for filing, an innocent overlapping of two periods on the same day. However, the matter is not one of first impression in this state. The majority recognizes this problem and solves it by overruling the case of State ex rel Stewart v. Macy, 82 Or 81, 161 P 111.
In the Macy case this court held:
“* * * the date of the election at which it is desired to have the initiative measure acted upon being December 4, 1916, by the terms of the latter ordinance such initiative petition must be filed with the recorder not later than 30 days before that date. In order to comply with this requirement the last date upon which such petition could have been filed was November 3, 1916. In other words, after the filing of such petition, 30 full days must elapse before the election. The filing of the petition having been completed on November 4th, excluding that day only, 29 days would elapse before December 4, 1916.” (Emphasis added.) 82 Or at 84.
The Macy case considered an ordinance which said “not later than” 30 days. In the case now before the court, the law says “not less than” 70 days before the election.
The majority opinion relies upon a statement in 86 CJS 856, Time §13 (5), to the effect that such phrases as “at least” or “not less than” will not demand *588that full or complete days he counted. But our own previous pronouncement on this same matter is to the contrary. In Watson v. City of Salem, 84 Or 666, 671-72, 164 P 567,164 P 1184 (1917), it is stated:
“* * # The words ‘not less than,’ like the language ‘at least,’ signify ‘in the smallest or lowest degree; at the lowest estimate’; and legislation prescribing ‘not less than’ or ‘at least’ a specified number of days is usually construed to mean clear and full days for the specified period of time [citing authorities]. Emphatic as is the word ‘for’ it is, if possible, made still more emphatic by the accompanying language ‘not less than’; and when combined these words unmistakably mean that the notice must be published for a period of time which cannot be less than five full successive days. In brief, the notice must be published five full days before the right to submit bids is closed.”
In overruling the Macy case, the majority opinion may cause doubt concerning the method of counting time which must elapse in a variety of other situations. The statutes are replete with provisions requiring the passage of time between events. One can think of dozens of situations in which the law provides that some action must be withheld for 10 days, or notice must be given 30 days prior to an act, or bids may not be opened until a given túne after the invitation for bids. In each of these situations it has been sufficient, since the decision in the Macy case, to rely upon the proposition that the elapsed time must be the given number of full days. It is hoped that the overruling of the Macy case will not open the door to confusion in an unforeseeable number of future cases.
The majority opinion says that its result follows from the wording of OBS 174.120. If the method of *589counting the days within which an act must be done requires full days, how then can less than full days satisfy a statute which requires the passage of time during which an act cannot be done? It would be more logical and more certain of application to hold that full days are required in both cases.
I would sustain the demurrer.
Sloan and O’Connell, JJ., concur in this dissent.