Page:North Dakota Reports (vol. 3).pdf/429



Trustees of State Institutions—Tenure of Office.

Section 1, Ch. 93, Laws 1889, which provides for the appointment of trustees of the state institutions, including the penitentiary, examined’ and construed. The section contemplates that such trustees shall (except in cases of vacancy) be appointed by the concurrent action of the governor arid senate, and, when so appointed, that such trustees shall continue in office, not only until the expiration of the prescribed term for which they are appointed, but beyond that period, and until their successors are chosen by the action of both the governor and senate. It is accordingly held, that trustees who were appointed by the governor, and confirmed by the senate at its session in 1891, for a term of two years, are lawfully entitled to hold over after the expiration of the term of two years for which they were appointed, notwithstanding the fact that the governor in due time nominated their successors, and the senate which assembled in 1893 adjourned without confirming them, or confirming any successors of the trustees appointed in 1891.

Expiration of Prescribed Term—When Vacancy.

The expiration of the prescribed term, when coupled with the fact that the senate adjourned without confirming successors of drustees in office under a former appointment, will not operate to create a vacancy in the office, which, under the statute, can be temporarily filled by the governor, The vacancies contemplated by the statute are actual vacancies, and such as arise from death, resignation and like causes.

Power of Governor to Fill Vacancies.

Under § 78 of the state constitution, the appointing power of the governor is confined to filling vacancies in office in cases where no other mode is provided by the constitution or laws for filling the same.

Appeal from District Court, Burleigh County; Winchester, J.

Action by the State of North Dakota, on the relation of William H. Standish, as attorney general, and Daniel Williams, against Nelson F. Boucher, to try title to the office of warden of the state penitentiary. Judgment for defendant. Plaintiff appeals.

Affirmed.

W. H. Standish, Atty. General, for appellant.

The executive possesses the power of removal from appointive offices and by appointing Ward and Taylor for the places