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Bob Ferguson

AGO 1951 No. 157 -
Attorney General Smith Troy


Where the 28th day prior to a municipal election falls upon a holiday, the primary should be held upon the preceding day.

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                                                                October 26, 1951

Honorable Earl Coe
Secretary of State
Olympia, Washington                                                                                                              Cite as:  AGO 51-53 No. 157

Dear Sir:

            Receipt is acknowledged of your letter of October 24, 1951, in which you ask whether cities scheduling elections in 1952 should hold their primaries on Tuesday, February 12, or whether that date should be excluded in the counting and the primaries be held on Monday, February 11.

            It is our conclusion that the primaries should be held on Monday, February 11.


            Sections 1 and 2 of chapter 101, Laws of 1951 (RCW 29.13.020 and 29.13.030); prescribe that the date of all city elections shall be the second Tuesday of March in the year in which they may be called.  Section 7, chapter 257, Laws of 1951 (RCW 29.21.010) provides:

            "All primaries in all cities of the first, second and third class, irrespective of the type of form of government, shall be non-partisan and held four weeks prior to the municipal general election * * *."

            Thus, the date of the primary is established by reference to the date of the general election.  Applying the statute it will be found that general elections will fall on March 11, 1952.  Four weeks prior to this date would be arrived at by counting backward twenty-eight days.  Section 743 of the Code of 1881 (Rem. Rev. Stat. § 150) provides:

             [[Orig. Op. Page 2]]

            "The time within which an act is done as herein provided shall be computed by excluding the first day and including the last unless the last day is a holiday or Sunday and then it is also excluded."

            Thus, the first day of the count should be excluded and the last day included, unless it falls upon a Sunday or holiday, in which event the holiday should be excluded.

            In the case ofState ex rel. Earley v. Batchelor, 15 Wn. (2d) 149, 130 P. (2d) 72, our Supreme Court held that in determining when an act which precedes an election is required to be done, the time should be counted backward, excluding the election day.  If this formula is followed in this case, and if all of the days are counted, the twenty-eighth day will fall upon February 12, which is Lincoln's Birthday.  By chapter 51, Laws of 1927 (Rem. Rev. Stat. § 61) this is a legal holiday.  Since the computation is made by counting backward, the last day of the count thus falls upon a legal holiday.  In the case ofState ex rel. Earley v. Batchelor, 15 Wn. (2d) 149, 130 P. (2d) 72, our Supreme Court, in dealing with a comparable situation, said:

            "It may readily be seen, by referring to the foregoing calendar table, that, if we count the days consecutively backward from November 3rd, excluding it as the first day, as the statute, Rem. Rev. Stat. § 150, prescribes, the thirtieth day will fall on Sunday, October 4th.  But Sunday being a legal holiday, it must be excluded under the statute.  We think the statute clearly means that, if a day is to be included, then it must be counted as one of the days of the period to be computed; but, if a day is to be excluded, it must not be counted as one of the days of the period.  Cosqriff v. Board of Election Commissioners, supra.

            "Thus, since we must not count the last day, Sunday, October 4th, as one of the thirty days‑- and we are counting backward‑-then we reach the conclusion that the immediately preceding day, Saturday, October 3rd, is the thirtieth and last day for filing the nomination."

             [[Orig. Op. Page 3]]

            Following the same procedure in this case, February 12 will not be counted, but the twenty-eighth day will fall on February 11 and that is the proper day for the primary elections.

Very truly yours,

Attorney General

Assistant Attorney General