Page:North Dakota Reports (vol. 3).pdf/431

 adjudged that the plaintiff Williams had no right or title to said office, and that the defendant, Boucher was the duly elected and qualified warden, and entitled to hold said office and exercise its powers. From such judgment, plaintiffs appeal to this court. The facts which are embodied in the complaint and answer, are not controverted. Both claimants of the office in dispute base their respective claims to the office upon an alleged appointment thereto made by certain distinct groups of individuals, each group claiming to be and to constitute the board of trustees of the penitentiary at Bismarck, and therefore it will be necessary in disposing of this case to inquire into and determine which of the two groups of individuals that have assumed to act as the board of trustees of the penitentiary is entitled in law to exercise the power of such board, and to appoint the warden. The law creating the office of trustees of state institutions, including the Bismarck penitentiary, and regulating their appointment and terms of office, is found in § 1, Ch. 93 Laws 1889. At a session of the state legislature which convened in the year 1891, the governor of the state, acting under said statute, duly nominated, and, with the advice and consent of the senate, appointed, five trustees for the penitentiary,—three for a term of four years, and two for a term of two years. The title of the three who were appointed for the term of four years is not questioned; but the title of the two trustees who were appointed for the term of two years, viz: one Frank Donnelly and one Arthur Van Horn, is now denied and disputed by the plaintiffs. All of said trustees, appointed in 1891 as aforesaid, soon after their appointment, qualified and entered upon the discharge of their duties, and have ever since being acting in the discharge of their duties as such trustees. At the regular session of the legislative assembly, which convened at Bismarck in 1893, the governor of the state, at the proper time, nominated and sent to the senate for confirmation the names of W. O. Ward and Joseph B. Taylor as trustees of the penitentiary at Bismarck, and as the successors in office of said Donnelly and Van Horn, who had been appointed in 1891 for a