State ex rel. Reitemeyer v. Gasconade County Court

33 Mo. 102

Opinion

Bates, Judge,

delivered the opinion of the court.

This is an application for a mandamus to compel the County Court of Gasconade county to commission the petitioner as treasurer of Gasconade county. The return to the first writ of mandamus shows the only reason of the refusal to commission him is, that the election at which he was chosen treasurer took place on the fourth day of November, 1862, and that he filed the oath required by the second section of the ordinance of the Convention defining the qualifications of voters and civil officers in this State, on the thirtieth day of October, 1862. The ordinance requires that the oath shall be filed in the office of the clerk of the County Court “at least five days before the day of election.”

If the day on which the oath was filed be counted, then it was filed five days before the day of election. In the computation of time it is laid down, generally, that where the computation is to be made from an act done, the day when such act was done is included. But it will be excluded whenever such exclusion will prevent a forfeiture. Here to exclude the day on which the oath was filed, would cause a forfeiture. We think that day should be counted, and therefore that the petitioner complied with the requirement of the ordinance. Peremptory mandamus is awarded. (R. C. 1855, p. 1027, § 22, s. d. 4.)