Fitch

*535 By the Court,

From the agreed statement of facts in this case, it appears that Jonas Winchester, who was duly elected state printer, resigned his office on the 28th of March, 1851. On the 31st of March, 1851, while the legislature were in session, the governor appointed James B. Devoe to fill the vacancy created by said resignation. Devoe continued in office until the 2d of May, 1851, after the adjournment of the legislature, on which day he resigned. After the resignation of Devoe, the respondent, (Fitch,) was appointed by the governor, and has discharged the duties of the office ever since.

On the first of May, 1851, an election was held in the legislature for the office of state printer, and the relator, Casserly, received a majority of the votes cast, and was declared accordingly duly elected state printer for the unexpired term of said office, and thereupon he took the oath prescribed by law and tendered his bond of office.

For the respondent it is contended, that Winchester having resigned during the session of the legislature, and there being no provision for filling up a vacancy occurring during the session, the governor was empowered, by the provisions of the 8th…