Page:North Dakota Reports (vol. 3).pdf/438

by and with the advice and consent of the senate, and hence, under the statute, will continue to hold their office until their successors are appointed and qualified in manner and form as the statute directs. There is no doubt in our minds that the statute in question must be so construed as to mean that successors of trustees shall be appointed by the same power and authority which appointed their predecessors, i. e. by the governor of the state, by and with the advice and consent of the senate. The legislature having adjourned without day, and the senate failing to confirm successors to Donnelly and Van Horn, it follows as of course that their successors cannot be legally appointed until the legislature shall reassemble, unless a vacancy has occurred or shall occur in their offices. It is the policy of the statute, as well as its clearly expressed purpose, to require the action of both the governor and senate in filling the important offices of trustees of state institutions, and not to allow them to be selected by the independent action of the executive, except in those cases of vacancies, not frequently occurring, where an executive appointment can be made temporarily to fill an actual vacancy. It has been said that the law abhors a vacancy in an office, but, in our judgment, a vacancy in the office of a trustee of one of the public institutions of this state does not come about from the mere expiration of the limited term, even when that event is coupled with the fact that the senate had adjourned without confirming successors of those whose terms had expired by limitation of time. It seems quite clear to us that the vacancy referred to in the statute, and which alone gives the executive the right to make a temporary appointment, relates only to such actual vacancies as may arise from death, resignation, and the like. The expiration of a definite term, and failure of the senate to confirm successors to those whose terms have expired, are certainly not among the causes enumerated in the Code which will create a vacancy in office. Pol. Code, § 2 Ch. 22; Comp. Laws, § 1385. A “vacancy in office,” within the meaning of the law, can never exist when an incumbent of the office is lawfully there, and is in