The Territory, ex rel. McKinnis, v. Hand.
As seemingly to enforce our view of the proper construction of this Black Hills enactment, we find an express exception in the case of justices of the peace, they being by the 8th section thereof, only to hold until the election in 1877. And if it was the intention of the Legislature that all the other officers should hold only until that time, why single out and expressly mention justices of the peace. Does not the rule here apply, "that the express mention of one class excludes the others." (Dwarris on Statutes, page 221.) Counsel also cited the following statutes, bearing generally on the points discussed: Ch. 40 § 3, Ch. 42 § 15, and Ch. 22, Political Code.
McLaughlin & Steele, for same.
This is an appeal from an order of Hon. Granville G. Bennett, judge of the District Court of the First Judicial District, in and for the county of Lawrence, ss., who issued on the—day of October, 1877, a peremptory mandamus to the defendant, commanding him to give notice of a general election for county offices in said Lawrence county, on the 6th day of November, 1877. The question involved and presented to his honor, and which he decided affirmatively, was: "Does the law of Dakota require an election for county officers at the election to be held on the 6th day of November next?"
From the order of the judge, an appeal was taken to this court.
We think there was error in the ruling of his honor, and that the same should be reversed, on technical grounds, as well as on the merits.
On strictly technical grounds, the alternative writ of mandamus issued and served upon the defendant, citing him to show cause why a peremptory writ should not issue, was not under the seal of the court, and therefore was a nullity. (People v. Fisk, 1 Hun.)
In this Territory we have "orders" and "writs." The former is defined by section 509, Code Civil Procedure, to be: "every direction of a court or judge, made or entered in writing, and not included in a judgment." Thus we have the "order of arrest," which is issued by the judge of the court in which the action is brought, (§150) and the "order of injunction," which is issued by the court or judge, (§ 188.)
