Page:Dakota Territory Reports.djvu/457

 Bartlett Tripp and Gamble Bros.^ for appellee.

Cited and relied on the following authorities: State v. Gamble, 13 Fla., 9; State v. Conrades, 45 Mo., 45; State of Oregon v. Johns, 3 Oregon, 533; Wolsen v. Cobb, 2 Kansas, 32; McAlfee v. Russell, 29 Miss., 84; Dwarris on Statutes, 189; Patterson v. Winn, 11 Wheat., 385.

, J.—The Territorial Legislature, by an Act approved February 10, 1877, provided for the organization of the counties of Lawrence, Pennington and Custer, and authorized the governor to appoint all the officers for said counties except justices of the peace. The Territory embraced within these counties, was, at the time of the passage of said act supposed to be within an Indian reservation, and the act provided that nothing should be done by the governor towards the organization of said counties until the Territory embraced within them should come within the jurisdiction of the Territory.

After the ratification of the Sioux Indian treaty by Congress on the 28th day of February, 1877, the governor appointed the officers for said counties, among others the appellant as register of deeds and ex officio county clerk of Lawrence county, and issued commissions to his appointees, running until January 1st, 1879, and until their successors should be elected and qualified.

The same act provided for the election of four justices of the peace in each of said counties, at special elections to be called by the respective boards of county commissioners, when organized, who should hold their offices until their successors should be elected at the general election in 1877, and should qualify.

Prior to said general election the board of county commissioners of Lawrence county spread the following minute on their records: *' We will, therefore, call an election for four justices of the peace, and for no other officers;" and appellant, at the proper time, as derk of said county and in compliance with the provisions of section 5, chapter 27, Political Code,