Page:Dakota Territory Reports.djvu/465

 officers should be elected or appointed, and the legislative power, true to the principles of republican government in its simplest form, provided for their election among the earliest enactments on our statute books, and there is no impropriety in saying that the right to choose their local officers, is lodged with the people of this Territory, and for the purposes of this case it matters but little how that right may have been conferred, whether by a Constitutional provision or an act of Congress, aided by their own legislation, the material point is, they possess it, and hence the rule of construction is the same, when various statutes effecting this right are under consideration.

We are clear in the opinion that the voters of Lawrence county had the right under the law to choose all their county officers, that are elective, at the general election in 1877, and that the peremptory writ of mandamus was properly granted.

Two other incidental points are worthy of notice. For what term or period are these officers elected, and when should they qualify? As the statute provides that they shall be elected at the general election in 1878, and every two years thereafter, except commissioners, it follows that the officers chosen at the general election in 1877 were so chosen to fill out an unexpired term, and that their successors must be elected at the general election in 1878. On the other point as to the time when the newly elected officers should qualify, I think there is not much room for doubt or difference of opinion. The appointees are to hold until the next general election, and until their successors are elected and qualify; and in the absence of any statute fixing a particular time, the officer elect is entitled to the office and its emoluments as soon as the result of the election has been officially declared, and he has qualified as required by law. The appointments running only to the next general election, cannot by intendment or construction be made to extend until the first Monday of January, as contended by counsel for appellant; and section 9, chapter 5, Political Code, applies to the qualification of officers elected for a full term, and not those elected to fill vacancies or unexpired terms; it reads as follows: "Except when otherwise