
    [Civil No. 3954.
    Filed January 31, 1938.]
    [75 Pac. (2d) 700.]
    KEMPER MARLEY, Plaintiff, v. TOM J. CAVNESS, Defendant.
    Mr. Elmer Graham and Mr. W. L. Barnum, for Plaintiff.
    Messrs. Sutter & Gentry, for Defendant.
   ROSS, J.

This case is ruled by tbe decision, McCall v. Cull, ante, p. 237, 75 Pac. (2d) 696.

Defendant, Cavness, was appointed a member of tbe livestock sanitary board on January 5, 1933, and before tbe expiration of bis tbree-year term on, to wit, March 5, 1935, tbe Governor reappointed him with tbe advice and consent of tbe Senate, but tbis last appointment was void for tbe reason that there was no vacancy when it was made.

Defendant served bis term under tbe original appointment and, because no successor was appointed and qualified, continued liis tenure in the office under section 56, Revised Code of 1928, and was the lawful incumbent thereof on August 14, 1937, when plaintiff was appointed to the office by the Governor.

Because there was no vacancy in the office, the Governor could not appoint plaintiff. The power to do so being conferred upon him and the Senate jointly, their concurrence was necessary to the appointment.

The demurrer is sustained and the judgment is that the complaint be dismissed.

McALISTER, C. J., and LOCKWOOD, J., concur.  