The statute provides: "The primary elections of all political parties shall be held on the second Tuesday in August preceding the general election." Section 3758, Crawford Moses' Digest. That date, in the present year (1932), falls on August 9, 1932.
The majority say: "Rule 43 of the rules adopted by the Democratic Party in Arkansas provides that candidates shall file the prescribed pledge with the Secretary of the State Central Committee not later than ninety (90) days before the election." The fee for placing the name of the candidate on the ticket must be paid within the same time. The majority also say that the pledge and fee from Montgomery were received by the secretary (of the committee) on the morning of May 11, 1932. It is not questioned that the secretary of the committee was a proper person with whom to file the pledge and to whom the fee should be paid, although filing may be made with, and payment may be made to, the assistant secretary of the committee.
It occurs to me therefore that the only question in the case is, whether Montgomery filed his pledge and paid his fee "not later than ninety (90) days before the election."
It is true the chairman and secretary of the Democratic State Central Committee announced that this rule could be complied with only by paying the fee and filing the pledge on or before midnight of May 10, 1932, but, this construction to the contrary notwithstanding, the rule remained unchanged. I do not understand that it is contended, or that it is the intention of the majority to decide, that the chairman and secretary have power to make rules. It is held only that they may construe the rules, but that, when this construction is publicly announced and fairly made, it becomes as binding as a rule itself. From this holding I respectfully dissent. If a rule is erroneously construed, but must be modified to *Page 1143 conform to that construction, if publicly announced and fairly made, this can be nothing more nor less than the power to amend the rules by construction. I submit that the chairman and secretary have no such power.
It must not be forgotten that this primary election is a legal election, and that we have not only party rules, but we have statutory regulations applicable thereto. These party rules must be construed with reference to all applicable statutes and judicial constructions thereof. The present proceeding partakes of the nature of a contest by an eligible candidate before the chairman and secretary of the committee, who are assuming to act for the committee, to enforce his right to become a candidate.
Section 3778, Crawford Moses' Digest, appears to have relevancy upon this issue. It reads as follows: "All laws or rules of political organizations holding primary elections providing for contest before political conventions or committees other than the proceedings herein provided shall be of no further force or effect."
We get back therefore to the question with which we started, the correct answer to which should control the decision of this case, and that is, did Montgomery in fact file his pledge and pay his fee within the time fixed by the party rules when properly construed?
We have a statute which I think very definitely decides this question. That is 9756 of Crawford Moses Digest, which reads as follows: "Where a certain number of days are required to intervene between two acts, the day of one only of the acts may be counted."
It is a matter of calculation, about which there is no question nor room for construction, that if, as the statute quoted requires, either May 11th or August 9th is counted (and only one of these dates may be counted), Montgomery paid the fee and filed his pledge ninety days before the election. Any correct calendar will verify this calculation.
The exact question here presented was expressly decided in the case of State v. Hunter, 134 Ark. 443,204 S.W. 308, which was also an election case. The facts in *Page 1144 that case were that the election commissioners of Perry County were indicted for suppressing the certificate of nomination of a candidate for sheriff, contrary to the statute which provides that such certificates of nomination shall be filed with the county election commissioners "not more than sixty days nor less than fifteen days before the election." The argument was there made that under this statute fifteen full days must intervene between the date of filing the nominating certificate and the date of the election. In overruling that contention, it was there said: "Counsel rely on the decision of this court in Jones v. State, 42 Ark. 93, where, under a statute providing that road hands `shall have at least three days' actual notice' before being required to work on public roads, the court held that the statute required three full days to intervene between the giving of the notice and the day the work was to begin. We do not think that case controls the present one. We have another statute which provides that `where a certain number of days are required to intervene between two acts, the day of one only of the acts may be counted.' Kirby's Digest, 7822. Applying that rule to the language of the statute now under consideration, it does not mean that there must be fifteen full days intervening between the filing of the notice with the commissioners and the day of election. The language of the statute is that the notice shall be filed `not less than fifteen days before the election,' and under the statutory rule of interpretation one of the days should be excluded in the count. Adopting that rule of construction, the certificate of nomination was, according to the allegation of the indictment, filed within the time prescribed by statute."
If that decision is adhered to, it must follow that Montgomery paid his fee and filed his pledge "not later than ninety (90) days before the election," and the chairman and secretary of the committee were without power to hold otherwise, regardless of their good faith in so holding. *Page 1145
It is therefore my opinion that the judgment of the circuit court should be affirmed.