Democrat and sentinel. [volume] (Ebensburg, Pa.) 1853-1866, 1858-04-28
The Legality of the Last Kansas Constitu-
tion--0pinion of Attorney General Black.

The Legality of the Last Kansas Constitu-
tlon--opinion of Attorney General Black.
DEPARTMENT OF STATE
Washington. March 1853.
Shit having beer understood that some
doubts has arisen IN Kansas, concerning the
proper construction in the last clause in the
oath section of the organic law of that Terri
| tory. l herewith transmit for your informa-
| tion copy of the opinion of the attorney
General upon that subject
am. sir, very respectfully, your obedient
servant, LEWIS CAss
Gov. J.w. DENVER.
Lecompton. Territory Of Kansas
} Mr.. Black to Mr. Cuss.
ATTORNEY GENERALS OFFICE,
March 20, 1858.
SIR:-The question you propounded to me
! is on the construction Of the following clause
in the act organizing and establishing the
territorial government of Kansas "If any
bill should not b, returned by the Governor
within three days (Sunday excepted,) after
it shall have been presented to him, the same
| shall be law in like manner as if he had
signed it unless the Assembly adjourning,
prevent its return, in which case it shall not
be = law" Does this give to the Governor
three clear days to consider bill? Or is he
",
in the day on which it is presented as one of
the three,
1t is the universal rule in the computation
of time for legal purpose, not to notice frac-
tons of day When the law allows
thing to be done within certain number of
days, you cannot take fractional part of one
day at the beginning, and add to it another
fraction at the end in order tc make up the
whole day. But where the fraction at the
COMMENCEMENT Of the time shall be counted
as = whole day. or whether it shall be sxclu-
ded from tho calculation altogether, was a
much vexed question. on which both the En-
glish judges and the doctors of the civil law
disputed SO long and SO earnestly that it was
called the controUersio cOntrorcrtiSstnld Is,
How. 1881 The weight of the judicial au-
thorities in England, especially in the more
recent cases, is In favor OF the doctrine which
excludes the first day from the count. Chirty
sums up their effects 5y pronouncing that to
be the modern rule Of construction. (Gen
r, 109-'1O.) In this country, although
there may be cases in which the peculiar
words of a statute or contract would require
the first to be counted. 1t may safely be de-
clared as the settled law, universally under
stood and accepted, that fractional part of
the day from which time i, computed cannot
be counted at all
A lease Of land one year from. the Let of
April does not expire until the first day Of
April following. 1t would expire on the 31st
OF March. if the day on which the term began
were not excluded When bill is payable
ten days after sight, the day of presentation
is not one of the ten. When the decree of
the court requires an act to he done within
four days, the party cannot be Put in contem-
pit until the expiration of four whole days af-
ter the day on which the decree is dated.
When policy ofiusurance stipulates for two
days notice of fire, the day of the fire is
not included. A right by statute to redeem
lands sold for taxes within sixty days after
the sale, means sixty days without counting
the day of sale. These are few of the in
Vulnerable cases to which the American courts
have applied the general principle that, where
time is to be computed from an act done, the
day on which the act is done shall be exclu-
ded, unlessit is apparent that different COM
putation was intended.
The case under consideration is stronger
and clearer one for the application of the rule
than either of those | have mentioned
Though divisions of a day may be allowed
sometimes TO make priorities or give other ad-
vantages IN private transactions, they are al
ways excluded in public proceedings. (5.
Washb: 653.l If the fraction of the day on
which the bill in this case was presented of
the Governor cannot be counted as a fraction
and added to the fraction of the day on which
the Assembly adjourned Gas it manifestly can
not, then it must be left out of the count al
together by the plain words of the act of Con-
gress. The act says that the Governor shall
have three days after the bill is presented -
To count the whole of the first day would be
making the time commence before the bill is
presented. Indeed. this mode of counting a
part for the whole might be used so as to re-
duce the three days allowed by law to one.
Suppose the bill to be presented at the last
minute of the 1lth day of February, and the
Senate to adjourn at the first minute of the |
18th; in that ease, if We ct unit the two frac-
tions for two days, the Governor has, in eff |
feet, but twenty -four hours to consider the |
bill. The absurdity of this construction may
be made still more apparent by supposing the !
act to give the Governor only one day to con- |
slider and return bill. In such case, if !
you count the day on which the bill is presen-
ted, you leave him no time at all,
The provision of the organic act for Kansas |
IS copied from the Federal Constitution The |
.en days within which the President is reoui-
red to return bill, have never been under
stood to include the day of presentation
Though find no record evidence of the fact |
have very high and respectable authority |
or saying that the question was raised during
W ashington's administration and settled in
ull Cabinet council. 1t was then decided
hat the day Of presenting bill was not to be
counted as one of the ten; and this rule has
been regarded as the true one ever since,
hough there as..seldom, perhaps never, been
my practical occasion for its application
My opinion therefore, is, that if the Gov
'rnor of Kansas failed to return any bill pas
led by the Territorial Legislature, at its late
session, such bill is not law unless the
Assembly was in session three days after the
Law on which tho hill vas nroso,tJ