Page:North Dakota Reports (vol. 3).pdf/433

 building, and refused to turn over the penitentiary to Williams, and has never done so. The defendant Boucher, is in charge of the penitentiary as warden, and prior to such demand upon him by the said Williams, and after the attempted appointment of Williams, said Boucher had qualified as such warden, and claimed to be lawfully entitled to the office under and by virtue of an appointment thereto made by all of the trustees who had been appointed in 1891, as aforesaid, except said Stowers, who did not act, but refused to act, with the others who appointed the said Boucher as warden, as above stated. It appears from what has been said that the legality or illegality of the appointment of the said plaintiff Daniel Williams to the office of warden must turn upon the validity of the appointment of Ward and Taylor, who acted with Stowers in making his appointment. If Ward and Taylor were not trustees, and did not become such by virtue of the governor's appointment, then the appointment of Williams to the office of warden is and must be held to be a mere nullity.

The facts in the record call for a construction of the statute above cited. A portion of § 1 of the act is all that need be recited for the purposes of this decision. It reads: “And the governor shall nominate, and by and with the advice and consent of the council, shall appoint, at this session of the legislative assembly, five trustees for each of said institutions, two of whom shall hold their office for the period of two years, and three for the period of four years, and until their successors are appointed and qualified, except to fill vacancies, which appointments shall be made by the governor and shall extend only to the end of the next session of the legislative assembly.” This statute contemplates and in terms provides that the trustees of state institutions, including the penitentiary, shall be chosen by the concurrent action of the governor and state senate, the governor to nominate, and, with the advice and consent of the senate, appoint, the trustees; and the statute further provides that upon the occurrence of a vacancy in the office of a trustee, and only in that event, the governor of the state shall, without the concurrence of the senate,