Press and daily Dakotaian. (Yankton, Dakota Territory [S.D.]) 1880-1889, 1888-01-14


removals complained OF.
Third. ! new eoms to the last propo-
Bition OF the three and one upon which
much stress wns laid al the argument,
so-wit: That though the governor have
power OF removal he has no powcr OF
filing the vacancies, occasioned by such
Agemoval, except by and with the consent
OF the conncfI. The plaintiff contends
that the organic act has pointed out the
way In which appointments are 20 be
made and what vacancies Gan. be filed
BY the governor alone; and ii having
stated the manner OF appointments and
enumerated the caHea j which the
governor alone can fill vacancies, euoh
I~statementB and enumerations are exclu.
|sive and the legislature can prescribe no
Others. This 10 q general proposition
true of constitutional legislation, that
where the constitution has spoken, such
n~Eternnces are exclusive, and that upon
q given subject matter, the expression Of
ons thing lie the exclusion Of
SD others and this rule has
Foeen adhered TO very rigorouaiy by our
own supreme court. Zee Territory i
Briggs and Harris Manufacturing Go. Y
Walsh 2 OAK. And perhaps even the
border line was crosst d in the latter
case; but I think I shall be able To dis
tinguIsh the case at bar without O vio-
laEionS OF the established rule.
Sec. 1857 and 1858 OF the United States
revised statutes upon which plaintiff
relies, reads az follows:
See. 1S67-"hiI township, district ant:
county officers. excepting Justices of the
peace and general officers Of the militia,
shall be- appointed or elected ia snch
manner rs may be provided by the gov
ernor and legislative assembly in each
territory; and ell other officers not here
in otherwis provided fol, the governor
shall nominate, and by and with the adj
vice and consent OF the Legislative ooun-
oil OF that territory snail appoint, and
in the hFHt instance where q naw terri
tory is hereafter created by congress, the
governor alone may appoint all che OFF,
oere referred TO In this and the prece-
ding section, end assign them TO their
respective townships, districts and
counties, and the ofaceys so appointed
ahali hold their Offices until tho end OF
the first session OF the legislative assem-.
bly,"
Sec. l658.-sIn any OF the territories
whenever a vacancy happens from resiR.
nation or death, during the recess of the
Legislative council in any off0s which,
under she oraapic acs Of any Territory, il
to be allied by appointment OF the gov
ernor, by and with the advice and She
consent ofthe council, the governor
shall Ill such Vacancy BY granting q
commission which shall expire al the end
OF the next session OF the Legislative
councii.n
Sec. 1857 it will be observed prescribea
Tor the dllinR Of all township, distric,
and county Offices by. election or APP
pointment and for the filing OF all terri
torial ofiees by appointments Of the gov.
ernor with the advice and consent
Of the council With . exception, in
which the governor, In the hrst instance
may alone appoint n under Sec. 1858
the congress has given TO the territories
the Iighs ., eli vacancies during the re-
CESS OF the council in two cases only ia
VIII, the Geath OF resignation OF the IN.
curnbens. Plaintiff contends that these
two sections are grants Of power TO the
governor TO appoint, and that the only
power he has or can exercise 20 to np-
pointuents was gwen HIM by these SEQ
tions. Sec. 1857 was enacted in 1861 (so
fer 90 this territory WAS concerDed), and
that under 10 She governor could only
appoint by and With the consent Of the
council. and that sfter chs enactment Of
Sec. 1858, in 1872, he conld by that grant
OF power ell vacancies in the two csses
therein specified only. II the premises
of thu plaintiff are correct Tint these
Awo sections are TO be construed % grants
Of power, and that they contsin all the
rover of appoiptnons that the executive
Of this tertitcSy has or Gan exercise, the
result commended for would seem to
follow: bus under tbe view Ihave taken
the pcwers of appointment and removal
are executive powers conferred upon the
governor BY the Organic sat vssting in
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