Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1877-12-18
LAWRENCE COUNTY OFFICIALS.
Brief OF tho Appell.nt's Attorneys in the
Contested Election Case.

Briof OF tho Appellants Attorneys in the
Contacted Election Case
i We publish herewith portion of the
brief Of Mclaughlin and Steele, Of Dead
wood, in the case of McKinnis W Hand,
appealed by the defendant from the LIST dis
trict court to the supreme court. McLaugh-
lin and Steele are attorneys for the appell-
ant, Mr.. Hand, and the case involves the
possession of the Office Of register of deeds
for Lawrence county. Hand was the in
cumbent until forcibly elected by McKinuis
and he:claims that he was appointed to hold
until January 1st 1879. The case has been
argued before the supreme court and decis-
ion is now pending:
"Upon the merits of the gu estion the laws
relating to and regulating the election or ap-
pointment of county officers must be passed
in review.
The political privileges of voters in
Dakota territory are not inherent-as was
contended before the Judge; but are derived
from the congress of the United States
which in terms, declared that citizens over
the age of 81 years and those who have le-
gally declared their intentions to become such
should be entitled to vote and to hold office,
subject to the power of the legislative assem-
bly,, to prescribe qualifications, after the
first election (Revised Statutes U. S. 3 1859
1s60).
The same power which conferred these
privileges of voting and holding Office on
male citizens over the age of 81 years, and
those who legally declared their intention
to become such, provided that all township,
district and county offcers-except justices
of the peace and general officers Of the mill
tia-shall be appointed or elected in such
manner as may he provided by the governor
and legislative assembly.
The manner" Of filling county offices must
be by appointment, or election, and the gov
ernor and legislative assembly, are to deter
mine by which mode. 1t will not be insisted
upon that the law-making power Of the ter.
ritory may not prescribe one mode for one
or more counties, and the other mode for
remaining counties; or may prescribe the
same mode for all the counties alike.
The last legislative assembly recast the
election law as we'll as the other laws.
Chapter q relates to and regulates the mar
ner ofall elections for territorial, district,
county, township, precinct, city and other
"the general election shall be held in the
several precincts On the Tuesday next after
the first Moncay in November in each wear.
at which election shall be ch oaen a. many
officers, as are by law to be elected
Were 1t not for the latter part Of this Sec
tinn-"as manv officers az are bv law to he
elected"-no difficulty would be met with
in concluding that all the officers men,
toned in the first section we're to be elected
at the general election, and that the general
election was to be annual But we are put
on inquiry: What officers are bv law to be
elected at the annnal general election. Refer
ring to Chapter ~, Is, relating to counties
nrovides that the register OF deeds, sher.
if. assessor jndge Of the probate court
county treasurer. county surveyor, coroaer
superintendent Of schools. four justices o
the peace and four constables shall he
chosen at the general election in 1878 anc
, every two wears thereafter" This express
| SION 1878 and every two years there
after" excludes general election for coun
tv officers in 1877, and at each annual elec-
ton thereafter. The legislative intent il
: apparent as the legislative enactments wer,
}. prospective. AMI a genera! election for coun
ty officers had been held throughout th
territory 10 November, 1876, who were tt
hold Office for two wears. 1t is also appar
ent that it was the purpose Of the law.
making power of tnis territ ,rv tn make tn
> election of members of the legislature bl
), ennial as we'll as the county officers, an,
3. that such elections were to date from 1875
d This view of the law is not impaired b.
the special provisions in chapter 81. pro
vidine for the election annually Of on
~ county commissioner in each county,
Let it not be overlooked in this connec
J. ton, that the tenure of Office in each coun
ty was and is two years and until the sue
cessor of the encumbent was or shall b
y elected and qualified.
We now pass from the general law con
cerning county officers to the consideration
o of the Act to define the boundaries an,
. name certain counties in the territory G
IL Dakota" lChapter AZ, and which did no
e merely describe the geographical bounda
ries of, and give names to the counties o
Lawrence, Pennington and Custer, bu
! actually provided for complete and effect
> usl organization of said counties by ap
4 pointments to be made by the governor
s No one ought to entertain reasonabl
y doubt about the power Of the governor an
legislative assembly to provide the manner
either by special or general law, to fill th
< pointment The governor is par
= of the Law making powe
of this territory and it may be fairly pre-
sumed that he knew the legislative intent il
T. relation to the appointment of county off
GERS for Lawrence county and the terms 0
their respective Offices, and as the executiv
aimed to execute the Law in accordance Will
the legislative intent he issued commits
sions to the county appointees to hold thei
respective Offices until the general election
in 1878 and until their successors wer
elected and qualified. The defendant re
ceived commission as register of deed
: under this special law, which in terms ap
i points him to hold the Office until the gene
4 raj election in 1873 and until his successor
shall be elected::and qualified.
1t will be contended that the special &C
t (chap. 42) organizing the counties of Law
q renee, Pennington, and Custer, is suscepti
L BILE of different construction and should b
construed to mean that the governors specia
/ s~<o