majority">Mr. Justice Boggs

announced the opinion of the court:

This is a motion entered in behalf of the appellee for a rule on the clerk requiring him to file a petition for a rehearing of the cause as of the 12th day of May, 1902.

An opinion was filed herein on the 16th day of April, 1902. The rules of this court permitted the appellee to file a petition for a rehearing within twenty-five days after the filing of the opinion. The last day of the twenty-five days so allowed was Sunday, May 11, 1902. The office of the clerk is not open for the transaction of business on the Sabbath day, and for that reason we have construed the rule to permit the filing of petition for rehearing, in such instance, on the succeeding day, which in this case would have been Monday, May 12. The petition here asked to be filed was not, however, filed, or tendered to be filed, on Monday, the 12th. The motion for a rule on the clerk to file the same as of the 12th day of May is supported by an affidavit, from which it appears that on Monday, the 12th day of May, counsel for the appellant delivered the petition (together with the number of copies thereof as required by the rules) to the American Express Company, in the city of'Chica go, to be transmitted by express to the clerk of this court in Springfield.

Counsel insists it is a well recognized usage and practice in the courts of the State to regard petitions for rehearing, transcripts, and other like documents, as being constructively in the hands of the clerk from and after the time such documents have been delivered to an express company for transmission to the clerk or have been deposited in the post-office to be conveyed by mail to the clerk, and that in that view the clerk should file the petition herein as of the 12th day of May, the day on which it was delivered to the express company in Chicago. There is no rule of this court which authorizes the clerk to file papers as of any other date than that on which they are actually received by him. It is not a ministerial but a judicial function to determine that papers shall be filed nunc pro tunc as of a date other than that of their actual reception by the clerk. The official reporter of the court at once after the expiration of the twenty-five days allowed for the filing of petitions for rehearing, publishes in the “Official Reporter” all opinions in which petitions for rehearings have not been filed. In this case the opinion of the court was so published by the official court reporter as the final action of the court in the case.

The motion is denied.

is denied.

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