act with the ordinary results. The following illustrations will unfold what acts have been held to be ministerial and performable upon holidays. The docketing of a judgment is a ministerial act, mandatory by the words of the statute and not involving any discretion; much more is this true of the docketing of a transcript of a judgment rendered in another Circuit. Such action is valid, though performed on the 25th of December: In re Worthington (1877), U. S. Circ. Ct. W. Dist. Wis., 7 Biss. 455. Similarly, in Pennsylvania, where a note contained a warrant of attorney, authorizing the confession of judgment, the Court refused to strike off the judgment, regularly entered on the twenty-second of February. That the entry had been made on a legal holiday, was the sole ground for the application. The Court said * * * The question now presented is a new one, and has never been passed upon by our Supreme Court, at least in any reported case. Nor, in our judgment, is it sufficiently analogous to the numerous cases which have arisen under our statute in reference to the observance of Sunday, to render the authorities on that subject pertinent and decisive. ✶ ✶ ✶ We have called attention to these facts in reference to the Sabbath as a dies non, for the purpose of showing that what are known as "legal holidays," bear no resemblance in their character to the Christian Sunday. These are wholly creatures of the statute law, and their effect and force must depend entirely on the legislative will, as expressed by the lawmaking power. Our statute creating legal holidays, might, it seems to us, be reasonably construed as having reference exclusively to commercial paper, its presentation and protest. The doctrine of the law, as expressed in the familiar maxim, "Expressio unius, exclusio alterius," would justify such a construction. * * * The question presented then is reduced to this: Does the term, “legal holiday,” imply an absolute dies non juridicus? If this question be answered in the affirmative, then are the entry of judgment and the issuing of an execution, by the prothonotary, such political acts as are contrary to the statute, and therefore voidable at the suggestion of the defendant, who alleges no other equity or defence what*** We look upon that portion of the statute which simply ordains the twenty-second of February to be a legal holiday, as directory and not imperative, permissive and not obligatory, and this for the reasons: first, because the statute contains no negative words, and, secondly, because it imposes no penalty, in both of which respects it differs from the law and the adjudications in reference to the Christian Sunday. The provision in the statute, that the legal holiday shall be as Sunday, applies only to commercial paper, its maturity and protest, and not to judicial acts, or to the worldly employment in general. We are also of the opinion that the things complained of in this case, viz: the entry of the judgment and the issuing of the execution, in obedience to a præcipe, by the prothonotary, were ministerial and not judicial acts: WOODWARD, J., Paine & Co. v. Fesco & Co. (1886), C. P. of Luzerne County, 1 Pa. County Rep. 562. ever. A somewhat stricter view has, however, been taken in another Pennsylvania Court: infra. A sale for taxes is a ministerial act, and, in the absence of a statutory prohibition, may be made upon Christmas, notwithstanding doubts of the wisdom and propriety of so acting upon that day: Hadley v. Musselman (1885), 104 Ind. 459, 462. But this view has not been followed in Pennsylvania, where a sheriff's sale, which had been held upon the twentysecond of February, was set aside, solely on that ground. The Court said The sale was not void on that account, and if the Court should confirm the sale, the title would not be endangered; but when a sale is made on a legal holiday, and exceptions, for that reason, are duly filed, the sale must be set aside that effect may be given to the statute. The impropriety of advertising a sheriff's sale for the Fourth of July or Christmas, is apparent. Such days are not days for dicial, or legal, business, and no one can be required to attend to such business on those days.*** No one is bound to labor, or attend to business on these days, but any one who chooses may do so, and whatever is done, will be well done. Holidays are not necessarily, and strictly, dies non juridici, so that no judicial, or legal, business can be done thereon. All ministerial acts are valid. The offices may be closed, and the officers may keep holiday, but, if they choose, they may do business. Judicial business cannot, with propriety, be done on a legal holiday, yet, so far as done, will be valid. If the Twenty-second of February falls within a regular term of court, it will be dies non juridicus, just as restoration day, in England, is, when it falls in Easter Term. But those days ought not to be fixed for any judicial, or legal, proceedings-as, for instance, for audits or judicial sales. It will be misleading, I think, to apply the English decisions respecting dies non juridici. **** No one will doubt that a legal holiday is not a day for a sheriff's sale, because execution creditors, the defendant, and the bidders must not be compelled to attend to legal business on such a day: RowE, P. J., Rice v. Gable (1884, C. P. Franklin Co., 1 Pa. County Rep. 567. The issuance of a summons by a justice of the peace, on a legal holiday, is permissible because a ministerial, and not a judicial act, the justice performing both, but in the former, he exercises no judgment: Weil v. Geier (1884), 61 Wis. 414; Smith v. Ihling (1882), 47 Mich. 614. But no trial and no judgment would be valid on a holiday: Lampe v. Manning (1875), 38 Id. 673; Hemmens v. Bentley (1875), 32 Id. 89; S. C. 14 AMER. Law REGISTER 705. It is otherwise when the statute is so construed that it contains no prohibition upon judicial action, not conflicting with the object of the holiday: supra, p. 145. IV. NOTARIAL ACTS. In several cases, the acts of a notary in taking a deposition and an acknowledgment of a deed, have been held valid, though performed upon a legal holiday, upon the general principle that such acts were not judicial, but simply private business: Green v. Walker (1889), 73 Wis. 550 per COLE, C. J.; Slater v. Schack, S. Ct. Minn. July 17, 1889; Rogers v. Brooks (1875), 30 Ark. 612, 629, ENGLISH, Ch. J. saying— We have no statute prohibiting the taking of depositions on the fourth of July, though it is not in good taste for litigants to fix upon that day for taking their depositions, unless required by some emergency. Wilson v. Bayley (1880), 42 N. J. Law 130, is in fact opposed to the preceding cases, but the provisions of the State law, in relation to legal holidays, were followed without any discussion of the general principle. The statute (infra,) is peculiar in declaring that "no person shall be compelled to labor upon" a legal holiday. Upon the ground that the taking of depositions was the exerting of compulsory process by a branch of the court, this case has been approved in Glenn v. Eddy, S. Ct. N. J., March 11, 1889. In Green v. Walker (1889), 73 Wis. 548, a deposition had been taken in Missouri, on February 22, to prove the right of property to be tried in an action of replevin in Wisconsin. The Circuit Court excluded the deposition, but the Supreme Court held this to be erroneous, COLE, C. J., saying— "It is plain [that] our statute can have no extra-territorial effect. It could not prohibit the taking of a deposition in Michigan, or Missouri, merely by making the day, on which it was taken, a legal holiday. The legislature might, perhaps, provide that no such deposition, taken in another State, should be used as evidence in the courts of this State. **** We are not aware of any statute in this State which declares that a deposition, taken in another State, on a day which is made a legal holiday here, shall not be used as evidence in our courts. But the learned Circuit Court did not exclude the depositions on the ground that the taking of them was a judicial act, but thought that the policy of the law, or the purpose of it, was to exempt a citizen of the State from being called into court, for any purpose, on a legal holiday. The statute does not say that no person shall be required to attend to any business whatever on a legal holiday. If it did, it might be claimed, with much reason, that it would be a violation of the spirit of the law, to require a citizen to go to another State, to take a deposition, on such a day. There is no law which prohibits a citizen from laboring, or pursuing his worldly business, on any day of the week, except Sunday." Taking depositions, on the fourth of July, or a general election day, is forbidden in Iowa. V. PERFORMANCE OF CONTRACTS. Maturing contracts, other than commercial paper, have received construction after the analogy of commercial paper, and this upon the express ground of uniformity. Such construction, however, is untenable where the statute does not expressly, or by construction, forbid the ordinary avocations of life: it has probably arisen from the confusion of thought which identifies a non-judicial day with the Sunday cessation of work. Thus, in Wisconsin, the statute (infra) simply declares the days which are to be observed as holidays, and restricts the action of courts upon those days; still, a contract to deliver hogs on the first day of January, was held to have matured on the day previous, and the market price on that day, fixed the damages: Siegbert v. Stiles (1876), 39 Wis. 533 The time for the further performance of contracts, (not works of necessity or charity) is expressly extended to the next secular day, in California, (see the statute), Dakota, Idaho and Massachusetts. Speaking of the effect of the Kentucky Statute (infra), PRYOR, C. J., said— "We find nothing in the Statute, prohibiting business transactions on Thanksgiving Day, or treating that day as the Christian Sabbath, except as to commercial paper, and being a mere privilege, extended to the citizen, that he may, or not, exercise, as his judgment dictates, he is required to perform his business engagements on that day, if, by the terms of his contract, such is his undertaking. The office of the insurance company was open on that day, and nothing to prevent the appellee from paying the assessments: National Mut. Ben. Assn. v. Miller (1887), 85 Ky. 88, 94. VI. SCHOOL SESSIONS. In the absence of statutory regulations, schools should be allowed the usual legal holiday's and teachers suffer no deduction of salary: this upon the broad ground of conformity, as a decent usage in a civilized community: School District v. Gage (1878), 39 Mich. 484, 486. There are statutory regulations in Minnesota, Ohio, Vermont, West Virginia and Il'isconsin. VII. NEGOTIABLE PAPER. There is a want of uniformity in the day upon which commercial paper is payable, when the last day of grace happens upon a legal holiday. All the statutes fix the day, and have received literal interpretation by the Courts. There is little else to do than record the decisions as they fall into one of the classes of payable before or payable after the holiday. Of the latter class, where the days of grace are extended to the next succeeding business day, are Alabama. Louisiana, New York, (see the statute.) California, (sec the statute.) Missouri, (see the statute.) North Carolina, (see the Dakota. Nebraska. statute.) Oregon. These States follow commercial use and allow only two days of grace, when the third would fall upon a legal holiday, by authorizing demand of payment and protest on the day next preceding the legal holiday— Usage at a bank, known to the parties to commercial papers, will be allowed to operate so as to make a college commencement-day (at Harvard University), such a holiday as to change the day for demanding payment; but usage cannot go further and authorize a tender, by the endorser, on the day after the commencement: City Bank v. Cutter (1826), 3 Pick. (Mass.) 414. Arbor Day is not a bank holiday in six of the nine States where it is observed: See page 187, infra. |