¶1(dissenting): The question is one of construing a statute and applying it to facts which are not controverted. The pertinent parts of the statute (G. S. 1935, 13-309) read:
¶2“The governor . . . shall appoint a commissioner of elections, . . . who shall hold his office for a term of four years, and until his successor is appointed and qualified. . . . The governor shall appoint his successor for the same term of years; and in case of death, resignation or removal of the commissioner of elections, the appointment shall be for the unexpired term. ...”
¶3The facts are as follows: The statute became effective in Topeka sometime in 1925, and on September 26 of .that year the first appointment of a commissioner was made for a term of four years. Successive appointments were made in 1929 and 1933. The last of these was for a term which ended September 26,1937. There was no further appointment made until February 9, 1938, the officer whose term expired September 26, 1937, having held over until February 9, 1938, when defendant in this action was appointed, his commission of appointment purporting to be for a term of four years ending February 15, 1942.
¶4This statute in question fixed the length of term of the office at four years — no more and no less. The added phrase, “and until his successor is appointed and qualified,” could not have the' effect of extending the term, for, under our constitution (art. 15, § 2) ". . . the legislature shall not create any office the tenure of which shall be longer than four years.” The holding-over phrase is similar to that used in our constitution respecting the terms of state executive officers (art. 1, § 1) and county and township officers (art. 4, § 2). These provisions for an officer holding over after the end of his term are for the benefit of the public, and to provide an official authorized to conduct the business of the office in the event there had been a failure of election, or delay in appointment, or the failure of the one elected or appointed to .qualify. It has nothing to do with the duration of the term of office, or with the beginning *587or the end of the term of office. The held-over tenure served by an officer holding over after the end of his term is a part of the succeeding term. The officer so holding over is a de jure officer. The office is not vacant.
¶5The statute also provides “the governor shall appoint a commissioner of elections . . . for a term of four years” and “shall appoint his successor for the same term of years.” This contemplates successive terms of four years each, and when one term ends the governor “shall appoint” a “successor.” Obviously, there is no room here to say the time of the appointment of the successor was left to the discretion of the appointing officer. He is not given . authority to change the length of the term of office. That is fixed by statute.
¶6The statute then provides “in case of death, resignation or removal of the commissioner . . . the appointment shall be for the unexpired term.” These provisions deal with vacancies which occur within a term. They have nothing to do with reappointment at the end of the term — that had been provided for previously in the statute. There is no room here for the application of the doctrine expressed by the maxim expressio unius est exclusio alterius. The part of the statute relating to appointment to fill vacancies deals with all vacancies; no vacancy is omitted.
¶7The language o'f the certificate of appointment, issued by the governor to defendant, insofar as it states the term for which he was appointed, is not controlling. The term for which the appointment is made is governed by law, not by the language of the certificate of appointment.