The 1927 amendment to the primary election law, N.C.L., sec. 2409, provides that declarations of candidacy for county offices shall be filed "during regular office hours." At that time county clerks were required to keep their offices open on Saturday afternoons by virtue of the county officers office-hour statute of 1907, Stats. 1907, p. 373, an entirely separate statute, not relating in any way to election laws. In 1929 said office hours law was amended, N.C.L., sec. 2045, so that county clerks and certain other county officers would not be required to keep their offices open on Saturday afternoons; "provided, that nothing contained herein shall be construed so as to interfere with any duty now required of any public official under any of the election laws of this state." It is the opinion of the majority of this court that the foregoing proviso allows candidates for county offices to file declarations of candidacy on Saturday afternoons.
It seems clear to me that by the 1927 amendment to the primary law, it was the intention of the legislature to end all uncertainty and confusion regarding the hours within which candidates for office may and must file their declarations. I do not think that the legislature, in using the words "during regular office hours," intended to specify what those hours should be; that was a matter to be taken care of by separate office-hour legislation.
The duty of county clerks, before 1929, to keep their offices open on Saturday afternoons, was not a duty under any of the election laws of this state. To hold, therefore, as I think we should in this case, that when a candidate for a county office files his declaration of candidacy on a Saturday, such declaration must be filed not *Page 445 later than noon of that day, would not interfere with any duty now required of county clerks under any of the election laws of this state.
Under the majority opinion, the county clerks were required to accept filings of declarations of candidacy for county offices not only in the afternoon of August 6, but also on at least two of the Saturday afternoons next preceding that date. I do not think such was the legislative intent.
Reading together secs. 2408, 2409, and 2405 N.C.L. 1929, I am clearly of the opinion that petitioner's filing of his declaration of candidacy on the afternoon of Saturday, August 6, 1938, was unlawful, and that his name should not have been placed on the ballot for the primary election. Being of that opinion, I think the alternative writ should have been dismissed, and the petition for writ of mandamus denied.
NOTE — COLEMAN, C.J., having disqualified himself, the Governor designated Hon. JAMES DYSART, Judge of the Fourth Judicial District, to sit in his stead. *Page 446