Opinion, per MATTHIAS, J.

Having reference to the contention first made, we find no statutory provision fixing or in any manner regulating the office hours of the board of deputy state supervisors and inspectors of elections, nor any express requirements in that regard, but under the express provisions of the statute above referred to, candidates are entitled to all of the period up to "not less than sixty days previous to the day of election" during which to present nominating petitions, and whichever day is the last day upon which such petitions may legally be presented for filing, candidates are undoubtedly entitled to all of it. No rules or regulations of the board of deputy state supervisors and inspectors of elections as to office hours should be permitted to deprive candidates of rights which they have under the law. A well-established rule of construction requires that this statute shall be so construed as to avoid a penalty or forfeiture, or deprivation of any right conferred by law.

Assuming that September 2 was the last day for the filing of nominating petitions, that day did not expire until midnight, and, hence, opportunity should have been afforded for the presentation of nominating petitions throughout the period allowed by law, which, under the assumption that September 2 was the last day, would not expire until the end of that day, which was midnight.

The presentation of his nominating papers by the plaintiff on September 3 was within the time fixed by law and in every respect a compliance therewith; hence, his petition, when presented on that day, should have been filed. A statute almost

Opinion, per MATTHIAS, J.

identical, in the respect in question, with Section 5004 of our General Code has been construed by the supreme court of California in the case of Cosgriff v. Election Commissioners, 151 Cal., 407. The requirement there construed, as to the filing of petitions, was not "less than twenty days before the day of election," while our statute reads "not less than sixty days previous to the day of election." Because of the similarity of these two provisions, the reasoning of the court in that case is so pertinent and apt that we quote from the opinion the following:

"The word 'days,' as here used, refers to a day as a unit of time, and not as an aggregation of a certain number of hours, minutes, or seconds. In this sense, and for the purpose thus used, a day is not capable of subdivision into hours, minutes, or seconds, but is to be taken as a whole. In such computations the hours are not counted to ascertain whether a period of twenty-four hours, or a given number of such periods, have elapsed between the act to be done and the day from which the time is to begin running. The fractions of the days are no more taken into consideration than are the fractions of the seconds. The consequence is that every day, and every part of that day is, by this rule, one day before every part of the succeeding day. The last moment of any day is, in contemplation of law in such cases, one day before the first moment of the next day, although the elapsed time is infinitesimal. The rule is strictly one of convenience. Any other method of computation would

Opinion, per MATTHIAS, J.

require an accurate account to be kept of the exact hour, minute, and second of the occurrence of the act to be timed, would produce endless confusion and strife, and would prove impolitic, if not wholly impracticable."

A like conclusion is announced in Stebbins v. Anthony et al., 5 Colo., 348. From the many cases construing similar provisions we cite these because of their clear statement of the rule now generally followed.

The election for which plaintiff sought to qualify as a candidate is to be held on the 2d day of November. Starting with the 1st day of November, which manifestly is one day "previous to the day of election," and thus counting the consecutive days backward, it is readily ascertained that September 3 is the sixtieth day, and is, therefore, "not less than sixty days previous to the day of election."

A like construction was placed upon a similar provision by this court in Hagerman et al. v. Ohio Building & Savings Association et al., 25 Ohio St., 186. The provision there construed was a requirement of publication of notice of sale "for at least thirty days before the day of sale," which is in form almost identical with the statute here in question. The court there held that in computing the time, the day of sale should be excluded, but the day on which the advertisement was first made may be included, and that the time prescribed may be computed by counting the day on which the notice was first given. The court there held further that Section 597 of the Civil Code, being Section 10216 of the General Code, did not apply because that case

Opinion, per MATTHIAS, J.

Idid not have to do with an act to be done within a certain time.

From an examination of the many cases dealing with the construction of statutes of this character, we are convinced that the rule of computation now almost universally adopted and followed, and which appeals to us as the proper and reasonable one, is that where a statute requires an act to be performed a fixed number of days previous to a specified day, the last day should be excluded and the first included, just as under a requirement that an act be done a fixed number of days after a specified day, the first is to be included and the last excluded, in making the computation. The use of the words "at least," prefixed to the number of days named, cannot in anywise affect the result or the method of computation.

Applying the rule above stated, and counting the day of filing the petition and excluding the day of election, it will be seen that a petition filed on September 3 is filed at least sixty days previous to November 2, which is the day of election this year. It was, therefore, the duty of said board of deputy state supervisors and inspectors of elections to receive and file said petition when presented to it on September 3.

Writ allowed.

NICHOLS, C. J., JOHNSON, DONAHUE, WANAMAKER, NEWMAN and JONES, JJ., concur.

Opinion Per Curiam.

THE STATE, EX REL. SMITH, v. LLOYD ET AL., AS THE BOARD OF DEPUTY STATE SUPERVISORS AND INSPECTORS OF ELECTIONS OF

FRANKLIN COUNTY.

Elections-Nominating petition-Signatures in pencil insufficient, when-Municipal charter controls—Jurisdiction-Board of elec

tions.

(No. 15030-Decided October 7, 1915.)

IN MANDAMUS.

Messrs. Pugh & Pugh, for relator.

Mr. Franklin Rubrecht and Mr. Wm. J. Ford, assistant prosecuting attorneys, for respondents.

BY THE COURT. The relator filed in this court his original petition and seeks a writ of mandamus requiring the board of deputy state supervisors and inspectors of elections of Franklin county to print and place upon the official ballot the relator's name as a candidate for the office of mayor of the city of Columbus.

There is no issue of fact in the case, and for the purposes of this decision it is sufficient to state that it is admitted by the respondents that the nominating petition filed by relator conforms to Chapter 7, Title 14, Part First, General Code, and to the provisions of the charter of the city of Columbus, with the exception that seven signatures to said nominating petition were in lead pencil, and that no objection in writing was made to said nominating petition by any person at any time; and it is agreed that unless the seven signatures in lead