Hutchins v. County Clerk

THE COURT. Knowing an immediate decision was necessary in this case, attention has been given to it by the mem[349]bcrs of the court and we are prepared to render an opinion immediately.

So far as section 12a, adopted by the legislature March 10, 1933, is concerned, the court differs decidedly with the argument of counsel. We do not think counsel on either side presented the true meaning and intent of that section. If you will just read it carefully you will find the exception inclosed in parentheses was intended to apply to holidays— bank holidays and special holidays — proclaimed by the Governor, and was passed as an emergency measure to cover that particular condition. National bank holidays had been declared by the President and required holidays by the Governors of the different states, and in order to cover that situation the legislature passed an act known as section 12a of the Code of Civil Procedure and then provided it should apply to certain acts. We have taken occasion to read every one of these sections, and every one of these sections read “within”, not “prior”. Section 12a as amended does not change the law, in the opinion of the court, as laid down in the case of Griffin v. Dingley, 114 Cal. 481 [46 Pac. 457]. It makes no change and cannot be applied to anything except those special holidays. Again, the reading of section 12a, as amended, shows that exactly the same words are used as were passed upon in the opinion in the case of Griffin v. Dingley, where it provided that an act must be done within a certain time. Now, there is a difference in law between the meaning of the words “within” and “prior”. If you have to do a thing before a certain day, that day is not included; in other words, if you have to do a certain thing before the twenty-fourth day of June, the 24th of June is not included, because it must be before. According to the rule laid down for computing time when the nomination papers must be filed, and I may state as construed by the attorney-general of this state (while his opinions are not of the same weight or authority as those of the court, yet if his opinion coincides with the opinion of the court we can properly adopt it; we did not see all of his opinion, but the substance of it, a memorandum of it), 27 days in August would be excluded, 31 days in July would be excluded and 7 days in June would be excluded, leaving the last day the twenty-third day of June. We have seen no reason for attempting to alter the opinion [350]