Dissenting.
I dissent from all the foregoing opinion except wherein it decides that the eligibility of a county commissioner may not be inquired into in a ■mandamus proceeding, and in that portion I concur.
This case was tried in the district court, and was appealed to this court, upon the theory that the position of chairman of the board of county commissioners. is a'civil office. This theory is erroneous.
Sec. 18 of art. 5 of our constitution, as amended, provides for the election of a prosecuting attorney for each organized county of the state, and sec. 6, art. 18, as amended, provides: ■“The legislature by general and uniform laws shall provide for the election biennially in each of the several counties of the state, of county commissioners, a sheriff, a county treasurer, who is ex-officio public administrator and also ex-officio tax collector, a probate judge, a county superintendent of *354public instruction, a county assessor, a coroner and surveyor. The clerk of the district court shall be ex-officio auditor and recorder. No other county offices shall be established, but the legislature by general and uniform laws shall provide for the election of such township, precinct and municipal officers as public convenience may require, and shall prescribe their duties, and fix their terms of office.”
It will be at once observed that there is no such office as that for which appellant is contending and that the legislature is prohibited, by the constitution, from creating it. Therefore, sec. 1908, Rev. Codes (quoted in the majority opinion), cannot be construed to be more than a direction to the board fixing the time and manner of designating one of its members to preside at its meetings.
I have reached the conclusion that the legislature has not fixed the tenure of office of the chairman of the board of county commissioners for two reasons: (1) Because it cannot be inferred from sec. 1909, Rev. Codes (quoted in the majority opinion), or from any other statute, that it was the legislative intent so to do; and (2) Because there is no such office. The chairman is merely a member of the board of county commissioners who has been designated by the board to discharge certain duties incidental to its chairmanship, and, no term during which he shall preside having been fixed, he cannot be heard to complain if the board sees fit to depose him and to designate another of its members to discharge those duties.
Even though it be assumed that the office of chairman of the board of county commissioners can be, and has been', created by the legislature, in order to reach the conclusion that it was the legislative intent to fix the tenure of that office, as found in the foregoing opinion, I must amend see. 1908, Rev. Codes, and cause it to read: “The members of the board of commissioners must, at their first regular meeting on the second Monday of January next after their election, elect a chairman from their number, who shall continue to act as such until his term of office as commissioner expires,” or I must read into sec. 1909, a provision, which is not there, *355to the effect that, in case a vacancy occurs in the chairmanship. the board must elect a chairman to fill out the unexpired term for which the members were elected as commissioners.
When the legislative intent has been fully and clearly expressed in a statute courts should not, by way of interpretation, add new provisions to it.
The case of State ex rel. Childs v. Kiichli, decided by the supreme court of Minnesota and reported in 53 Minn. 147, 54 N. W. 1069, 19 L. R. A. 779, is somewhat analogous to this. It arose out of a dispute as to who should be president of the city council of Minneapolis, and involved the interpretation of the portion of the city charter providing that “at the first meeting of the city council in January of each year, after a general state election, they shall proceed to elect by ballot from their number a president and vice-president. The president shall preside over the meetings of the city council, and during the absence of the mayor from the city, or his inability from any reason to discharge the duties of his office, the said president shall exercise all the powers and discharge all the duties of the mayor.” Construing this provision the court said: “The sole purpose of the statute was merely to regulate a time when, and the manner in which, the city council should organize and elect their presiding officer, and to provide that, upon the happening of a certain contingency, such presiding officer, for the time being, whoever he might be, should perform the duties of mayor. There is nothing indicating an intention to create a city office distinct from that of alderman.” After an able discussion the court further said: “Our conclusion is that the president of the city council of Minneapolis is not an ‘officer’ of the city, within the meaning of the city charter or the constitution, but that he is merely the officer or servant of the legislative body which elected him, and that as such, he is removable at the will or pleasure of that body.”
I have been entirely unable to perceive the force of the reasoning which impelled the majority of the court to reach the conclusion stated in the opinion to the effect that a con*356struction of the statute permitting the board, at any regular meeting at which it sees fit to do so, to make a change in the chairmanship, would result in confusion and lack of orderly proceeding, on the part of the board, in' dispatching public business. Had it been deemed to be expedient by the lawmaking branch of the government that the chairmanship of the board of county commissioners be a county office and that one elected to it should hold it two years, it would seem the framers of the constitution would not have prohibited it, and that the legislature would have left nothing to be inferred, but would have expressly provided for it.
Under the construction placed upon the law by the majority of the court, I am unable to conceive of any lawful method of getting rid of a chairman, who has once been chosen, during his term of office as commissioner, however unsatisfactory his services as a presiding officer may prove to be, and regardless of the lack of orderly proceedings on the part of the board, in dispatching public business, his retention ■as chairman may occasion, unless he be guilty of such gross misconduct in office as to warrant his removal from the board in a judicial proceeding.