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 that had been held by Donnelly and Van Horn as trustees of the penitentiary, this operated as a removal and created a vacancy, even had not that vacancy taken place by a previous lapse of their two years term. Territory v. Cox, 6 Dak. 501; Blake v. United States, 103 U. S. 227; Keenan v. Perry 24 Texas 253; ex parte Hennen 13 Peters 259; Smythe v. Lalham, 9 Kan. 672.

Alexander Hughes and John F. Philbrick, for respondent.

Successors to the incumbents must be appointed by the governor by and with the advice of the senate and in no other way. And appointments to fill vacancies must be made in the same way, except only when the legislature is not in session, the governor alone may make temporary appointments. Peo. v. Howe, 25 Ohio St. 588. State v. Lusk, 18 Mo. 341; Peo. v. Osborne, 4 Pac. Rep. 1079; State v. Bearshide, 32 La. Ann. 934; Watkins v. Watkins, 2 Md. 354; Taylor v. Hibden, 24 Md. 202; Tapper v. Gray, 9 Paige Ch. 516; Com. v. Hawley, 9 Pa. St. 513; Territory v. Hauzhurst, 14 N. W. Rep. 432; State v. Wilson, 72 N. C. 155; Peo. v. Tyrrell, 25 Pac. Rep. 684; Peo. v. Bissell, 49 Cal. 407; State v. McMullen, 46 Ind. 407; McBlair v. Bond, 41 Md. 155; Peo. v. Hammond, 6 Cal. 657; Hubbard v. Crawford, 19 Kan. 570; State v. Brewer, 44 Ohio St. 593. Gossman v. State, 106 Ind. 205; State v. Harrison, 113 Ind 437. A vacancy in office is never created by the appointment of a successor to the incumbent except in those cases where there is no tenure of office and the incumbent holds at the pleasure of the appointing power. State v. Lusk, 18 Mo. 341; Peo. v. Carrigue, 2 Hill 103; State v. Jones, 3 Oregon 536; McBlair v. Bond, 41 Md. 152; Field v. Peo., 2 Scam. (Ill.) 79; State v. Harrison, 113 Ind. 434; State v. Leary, 64 Mo. 89.

, J. This is a civil action, brought by the attorney general of the state, under Ch. 26 of the Code of Civil Procedure, to try the title to the office of warden of the state penitentiary at Bismarck, as between said plaintiff Daniel Williams and Nelson F. Boucher, the defendant. After a trial the District Court