term of two years, as before stated. The nomination of said Ward and Taylor was not confirmed by the senate, but, on the contrary, their nomination was rejected, and the senate of 1893 adjourned without confirming any successors of the trustees appointed in 1891. Soon after the adjournment of the legislative assembly for the year 1893, the governor of the state, acting upon the assumption that a vacancy had occurred and was existing in the offices for which said Donnelly and Van Horn had been appointed in 1891 for a term of two years, appointed and commissioned said Ward and Taylor as trustees of the Bismarck penitentiary, and as the successors in office of said Donnelly and Van Horn. After such appointment by the governor, said Ward and Taylor undertook to qualify for their said offices, and took the oath of office, and executed an official bond, which official bond was approved, filed, and recorded with the secretary of state. Thereafter said Ward and Taylor, acting together with one Charles E. Stowers, (who was one of the duly appointed trustees of the penitentiary, and whose title to such office is not challenged,) met together, and assumed to be and constitute the penitentiary board, convened at the City of Bismarck, at the time and place appointed by law for the appointment of a warden for the penitentiary, and then and there did name and undertook to appoint the plaintiff Daniel Williams to be the warden of said penitentiary for a term of two years. All of the other trustees of said penitentiary refused to act and did not act or meet with said Stowers, Ward and Taylor at the time of their said meeting, or at any time. Said plaintiff Williams accepted such appointment, and his official bond was approved by Stowers, Ward, and Taylor, the other trustees refusing to act with them in the premises. After such appointment, the plaintiff Williams, in March, 1893, went to the penitentiary building, and made demand to be admitted thereto, and to have turned over to him the charge of said penitentiary as warden; but the defendant, Boucher, claiming to be the lawful warden of the penitentiary, refused to comply with such demand, and did not permit said Williams to enter the
