The Territory, ex rel. McKinnis, v. Hand.
commissioners shonld hold their offices until the next general election, and until their successors shall have been elected and qualified, but does not provide for such limitation of the term of officers appointed in any other way, or by any other tribunal or authority. And therefore it would be legislation and not construction to tack those special provisions relating to the counties in the Black Hills, when no reference whatever is made thereto.
But even under that law we do not concede that the officers thus appointed, if appointed previous to election in an odd year, would only hold until the election of that odd year; for such a construction would make the term of the officers then elected but one year, whereas the term of all such officers when elected, except county commissioners, is made two years by law.
Again, in support of the view we take, we call the Court's attention to sections 8, 11 and 12, pages 60 and 61 of the Revised Codes, in which it is provided that all vacancies in these disputed offices shall be filled* by the board of county commissioners, and appointments to vacancies thus made shall continue until the next general election at which the vacancy can be filled. And persons thus appointed shall qualify in the time prescribed in their appointment, whereas by sections 9 and 10, pages 10 and 1 1 of the Revised Codes, officers elected are to qualify and enter upon the duties of their office on the first Monday of January next succeeding their election, or within ten days thereafter. And their terms commence on the first Monday of January next succeeding their election.
No where in the statutes can be found a provision limiting the terms of these officers, when filled by election, to less than two years. On the other hand by chapter 23, page 224, laws of 1862, the terms of these officers are expressly fixed at two years, and as to the term of such offices that chapter has never been repealed. But by the construction of this Black Hills enactment contended for by respondent, the terms of all these offices filled by election in 1877, would be, by implication merely, limited to one year. This, we repeat, if followed by the courts, would be legislation and not construction.
