(dissenting). The attorney general has applied to this court for a writ of quo warranto to oust the respondents Scow and Powers from the offices of members of the state board of regents, on the grounds (1) that their original appointments were invalid; and (2) that, even though such appointments were valid, the respective terms of office for which the respondents were appointed have expired, *254and vacancies exist, which vacancies, it is asserted,' the governor ha» filled by proper appointment.
The first ground urged, namely, that the original appointments of the respondents were invalid, was the question involved and determined in State ex rel. Langer v. Crawford, 36 N. D. 385, 162 N. W. 710. In. my specially concurring opinion in that case I expressed my views on. this question so fuly that there is nothing for me to add at this time-except to say that time has only confirmed the views I then expressed, I might also add that some of those views are sustained by the decision of the Arizona supreme court in Dunbar v. Cronin, 18 Ariz. 583, 164 Pac. 452.
In support of the second ground the attorney general contends that-inasmuch as the terms for which the respondents were appointed expired on July 1, 1917, vacancies existed in the offices claimed by them, which vacancies the governor was authorized to fill by appointment.
The attorney general bases this contention upon two propositions: (1) That under the express terms of the Board of Regents Act itself a vacancy is declared to exist at the end of the appointive term of the members of the board, which vacancies the act empowers the governor to fill by appointment; and (2) that, if the act is not susceptible of such construction, vacancies exist under the general rules of law which the governor is empowered to fill by appointment under § 78 of the state Constitution. The opinion prepreared by Mr. Justice Robinson is based upon and sustains the first proposition thus advanced. I am unable to concur in the reasoning adopted by Mr. Justice Robinson.
The power and duty of the governor with respect to appointments, both permanent and temporary, are specifically defined by the act itself. Under the terms of the act, the then governor was empowered, and it was made his duty, “to nominate, and with the consent of the majority of the members of the senate in executive session to appoint,” the first members of the state board of regents.
The act further provides that “during the session of the legislative assembly and prior to the 15th day of January in each year in which the. term of office of any member so appointed shall expire, he [the governor] shall in like manner nominate, and subject to such consent of a majority of the senate, appoint a successor or successors to such member or members of said board whose term will expire with July 1st of that year, *255which said appointee shall hold office for the full term of six years from and after the expiration of the full term of office for which such predecessor or predecessors were appointed. In event any nomination made by the governor to such board is not consented to and confirmed by the senate as hereinbefore provided the governor shall again nominate a candidate or candidates for such office at any time while the legislative assembly is in session.” Laws 1915, § 2, chap. 237.
The following section of the act authorizes the governor to remove “any member of the board so appointed for incompetency, neglect of duty, immorality, malfeasance in office, or for other good cause; and in case of a vacancy in the membership of the board so appointed by-the governor or his predecessor in office, whether occurring by reason of removal or otherwise, [the governor] may declare the office vacant and fill the same by appointment until the convening of the next session of the legislative assembly, when he shall nominate some qualified person as a member of such board for the balance of such unexpired term and upon the consent of the senate as hereinbefore provided, shall appoint said nominee as member of said board." Laws 1915, § 3,. chap. 237.
The legislature had previously defined the term “vacancy.” It had said that an office becomes vacant on the happening of either of the following events:
1. Death of the incumbent.
2. His insanity judicially determined.
3. His resignation.
4. His removal from office.
5. His failure to discharge the duties of his office, when such failure has continued for sixty consecutive days, except when prevented from discharging such duties by sickness or other unavoidable cause.
6. His failure to qualify as provided by law.
7. His ceasing to be a resident of the state, district, county, or township in which the duties of his office are to be discharged, or for which he may have been elected.
8. His conviction of a felony or of any offense involving moral turpitude or a violation of his official oath.
9. His ceasing to possess any of the qualifications of office prescribed by law. '
*25610. The decision of a competent tribunal declaring void his election •or appointment. Comp. Laws 1913, § 683.
Under well-known rules of construction, the express mention by the legislature of certain causes creating vacancies must be deemed, in so far as it was within legislative power to do so, an exclusion of all •other causes. 36 Cyc. 1122. Is there anything said in the Board of Regents Act manifesting an intent to define the term “vacancy” or •enlarge upon the then existing statutory definition of the term ? Manifestly not. The act merely empowers the governor to fill vacancies. And, in the absence of plain and express language to the contrary, it must be assumed the legislature contemplated such vacancies only as were then defined by the laws of this state.
No one can deny that the legislature intended that permanent .appointments should be made only with the consent of the senate. Certain language used by this court in discussing somewhat analogous propositions in State ex rel. Standish v. Boucher, 3 N. D. 389, 398, 21 L.R.A. 539, 56 N. W. 142, is applicable here. The court said: “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.”
The attorney general, however, also contends that as the statute under *257consideration fixes a definite term of ofiice and makes no provision for an incumbent holding over until his successor is appointed and qualified, he ceases to be an officer, and a vacancy exists at the expiration of his term. He further contends that under § 78 of the Constitution the governor is authorized to fill any vacancy so occurring. This contention, therefore, embraces two propositions: (1) That the official authority of a person elected or appointed to an office, the term of which is definitely fixed by law, ceases upon the expiration of such term; (2) that the legislative enumeration of .causes constituting a vacancy is not exclusive; that if it be deemed exclusive it in effect contravenes •§ 78 of the state Constitution by limiting the appointing power conferred upon the governor by that section.
The fact that the act refers to the terms of office of members of the state board of regents as expiring on July 1st certainly is not susceptible of being construed as a legislative declaration that thfe offices shall become vacant at the end of the terms of office of the respective members of the board.
In this state all terms of office are for specified periods of time (although as to most of them it is provided that the incumbents shall hold over until their successors are elected and qualified). And, except when otherwise expressly provided, the terms of elective state and county officers commence on the first Monday in January next succeeding their election, and the terms of the then incumbents of such offices end, and in form expire, on the date fixed by law for the commencement of the official terms of their successors. But while the term has in form expired, the ending is not effectual until followed by the qualification of the successor.
It makes no difference whether you say that an official term shall commence on a certain day, and that the incumbent thereof shall hold his office for a term of two, four, or six years; or whether you say that his term shall commence on a certain day and expire two, four, or six years later. The two modes of designating the length of official terms is used by legislative bodies, courts, and legal writers throughout the country indiscriminately; and so far as I can find it is the first time in the history of legal jurisprudence that any attempt has been made to attribute a different meaning to one mode of expression from that attributed to the other. Both modes fix a definite term. The purpose *258of the legislature in fixing definite dates for the commencement and expiration of official terms is manifestly not to create vacancies at the expiration of such terms. But such dates are fixed for the sake of convenience, to obtain uniformity in official terms, or a proper order of succession therein. O’Laughlin v. Carlson, 30 N. D. 219, 152 N. W. 675. If such dates were not fixed, it would frequently result in confusion and uncertainty, as to the time of commencement of official terms and the proper time for successors to qualify.
Take the Board of Begents Act, for instance; if there was no date specified for the commencement and expiration of the terms of offices of members of the board, there might have been considerable doubt with respect thereto, and, if the different new members had qualified at different dates in the course of time, considerable confusion might have arisen. To say that a term of office expires on a certain day merely means that the designated official term in form ends on that day. It does not amount to a legislative declaration to the effect that the office shall be deemed vacant from and after the date on which the term of office of an incumbent is said in form to end.. Consequently, I am of the opinion there is no basis for the contention that the Board of Begents Act itself either defines or enlarges the statutory definition of the term “vacancy.”
The attorney general does not, however, rest his second ground solely upon the language of the Board of Begents Act itself. But, as already stated, he also contends that vacancies exist in the offices in question under the general rules of law, independent of statute, and that § 78 of the state Constitution empowers the governor to fill such vacancies. This contention embraces two propositions: (1) That the official authority of a person elected or appointed to an office the term of which is definitely fixed by law ceases upon the expiration of such term; (2) that the legislative enumeration of causes constituting a vacancy is not exclusive; that, if deemed exclusive, it in effect contravenes § 78 of the state Constitution by limiting the appointing power conferred upon the governor by that section.
The legal questions thus presented are by no means simple. Upon the first proposition there is great diversity of judicial opinion. Some courts hold that, where an officer is elected or appointed for a definite, fixed term, and the law contains no provision for his holding over until *259a successor is elected and qualified, his rights, duties, and authority as a public officer cease ipso facto upon the expiration of the term fixed. Other courts hold, and according to a noted legal writer, “the prevailing opinion in this country seems to be, that unless expressly or impliedly forbidden, the incumbent” of an office (except judicial or legislative) may continue to hold his office until someone is chosen and qualified to assume the office. Mechem, Pub. Off. §' 397. This rule, when applied to administrative officers, seems to be supproted by the weight of authority, and has received the unqualified approval of learned legal writers. See Mechem, Pub. Off. §§ 128, 397; Throop, Pub. Off. § 325; 2 McQuillin, Mun. Corp. pp. 1057, 1058; 1 Dill. Mun. Corp. § 158; 23 Am. & Eng. Enc. Law, 412. Mechem (Mechem, Pub. Off. § 397) says: “Such a rule seems to be demanded by the most obvious requirements of public policy, for without it there must frequently be cases where, from a failure to elect or a refusal or neglect to qualify, the office would be vacant and the public service entirely suspended.”
If this rule is adopted, there was no vacancy, and the governor had no power to appoint. If the contrary rule is adopted, the governor would likewise be unauthorized to appoint, unless it can be said that it was beyond legislative power to define and limit the causes creating vacancies, to the ones enumerated by the legislature in § 683, Compiled Laws 1913. This latter question has not been argued. As already stated there is an irreconcilable conflict among the authorities on the first proposition, and it merely resolves itself into a question of which is the better rule. Inasmuch as the opinions of the majority members are not based upon and do not consider these propositions, any discussion thereof in this opinion would be largely academic, and of little practical value.
So far as the actual intent of the legislature is concerned, it seems to me that when the legislature in the Board of Begents Act referred to vacancies, and authorized the governor to fill the same by appointment, it had in mind such vacancies, and such vacancies only, as had been recognized by the laws of this state for the last quarter of a century. Comp. Laws 1913, § 683. Whether it is beyond legislative power to enumerate, and in a measure limit, the causes which create vacancies, and whether § 683, supra, contravenes § 78 of the state Constitution, are questions upon which I express no opinion.