the actual discharge of official duty. Similar statutes of other states, which are indentical in their meaning, and generally in their language, with that we are considering, have quite frequently been construed by the courts of last resort in other states, and the construction we have placed upon our statute is sustained by the unanimous current of authority. State v. Howe, 25 Ohio St. 588; People v. Tilton, 37 Cal. 614; People v. Whitman, 10 Cal. 39; People v. Bissell, 49 Cal. 407; People v. Edwards, (Cal.) 28 Pac. Rep. 831; People v, Oulton, 28 Cal. 44; State v. McMullen, 46 Ind. 307; State v. Hadley, 64 N. H. 473, 13 Atl. Rep. 643; Gosman v. State, 106 Ind. 203, 6 N. E. Rep. 349; State v. Harrison, 113 Ind. 434, 16 N. E. Rep. 384. Sec, also, authorities cited in 19 Am. & Eng. Enc. Law, pp. 432, 433; People v. Tyrrell, (Cal.) 25 Pac. Rep. 684; Mechem Pub. Off. § 128; Com. v. Hanley, 9 P. St. 513; State v. Rareshide, 32 La. Ann. 934. “A vacancy exists only where no one has any legal title to the office.” State v. Ralls County Court, 45 Mo. 58. “So long as the. defeasible right to hold over continues, and the incumbent exercises it, the same conditions which would create a vacancy during the prescribed term will be required to create one during the term which he is lawfully holding over.” Gosman v. State, 106 Ind. 203, 6 N. E. Rep. 349. Our conclusion is that the plaintiff Daniel Williams was not appointed to the office of warden by the board of trustees of the state penitentiary, or by any lawful authority, and that said plaintiff has no right or title to said office. The judgment of the court below will be affirmed. All concur.
on rehearing.
(August 14th, 1893.)
Bartholomew, C. J. Elaborate and exhaustive petitions for rehearing have been filed in this case by the attorney general and C. U. Greely, Esq., of special counsel. In these petitions the view of the law taken by the executive in submitting to the senate the names of Ward and Taylor as members of the board of directors of the state penitentiary, and in the subsequent appointment of such persons after their rejection by the senate, and after
