Ellsworth, J.
This appeal arises out of a civil action brought under the provisions of chapter 25 of the Code of Civil Procedure for the purpose of trying, as formerly under the writ of quo warranto, the opposing claims of plaintiff and defendant to the office of sheriff of McLean county. The plaintiff (respondent here) alleges, in substance : That he is a resident and elector of McLean county as it is at present constituted. That at the general election held in November, 1908, there was submitted to the electors of McLean county, as it then ■existed, the question of dividing said county by creating out of a portion thereof a new county to be known as “Sheridan county.” That at such election a majority of the votes cast on the proposition of dividing the county were in favor of the creation of the new county of Sheridan. That thereafter such proceedings were had by the governor of the state of North Dakota and the board of county commissioners that ■said county of Sheridan was segregated from the county of McLean; ■such proceeding being complete on December 24, 1908; that, at the same general election in which the vote on county division was taken, the defendant, John A. Beck, was a candidate for the office of sheriff [8] •of McLean county‘as it then existed, and received a majority of the votes cast at said election for such, office. That, upon the canvass of said vote by the county board 'of canvassers, a certificate in the form provided by law was executed and delivered to said defendant by the county auditor of McLean county. That said defendant, at the time of said general election, was, and ever since has been, and now is, a resident and elector of that territory inclosed within the boundaries of the newly organized county of Sheridan, and has been such resident and elector continuously since the 24th day of December, 1908, and is not now, and has not at any time been, a resident or elector of McLean county as it now exists. That on the 8th day of January, 1909, the board of county commissioners of McLean county, at the regular annual meeting of such board, by resolution appointed the plaintiff to the office of sheriff of McLean county to fill the vacancy caused by the disqualification of the defendant. That thereupon plaintiff qualified as required by law, by executing and filing the oath of office and an official bond, and on the 16th day of January, 1909, made demand upon defendant for the possession of the books, records, and other property belonging to said office. That the defendant then and there refused, and still refuses, to surrender said office, or any of the books, papers, or records thereof, to plaintiff, and continues to withhold the same and to remain in possession of the sheriff’s residence; and denies plaintiff’s title and right to such office. Then follows a prayer for judgment, declaring that plaintiff is the rightful sheriff of McLean county and entitled to exercise the powers and functions of that office and to take and receive from defendant the books, records, and other property pertaining thereto; and that defendant be ousted and excluded therefrom and enjoined from in any manner interfering with or intruding into said office.
The defendant admits the allegations of the complaint with reference to the election held in November, 1908, and the results thereof so far as they relate to the division of McLean county and the office of sheriff of said county. He admits that by official declaration of the board of county canvassers he was entitled to receive, and did receive, a- certificate of election from the county auditor to said office of sheriff. He denies that he was on and after December 24, 1908, a resident of that portion of the former territory of McLean county now constituting [9] the new county of Sheridan, and in that behalf alleges that at the timé of the general election in November, 1908, and ever since, he has been, and now is, a resident and elector within the territory which is comprised within the county of McLean as it is now constituted, and that he is now, and has been ever since the 24th day of December, 1908,. continuously, a resident, citizen, and elector of said county. He further alleges that, after receiving the certificate of election to said office, on the 4th day of January, 1909, he took and executed the oath of office and filed with the county auditor of McLean county a good and sufficient official bond; that same was duly approved by the board of county commissioners of said county; that thereupon he did enter upon and perform the functions and duties of said office, and has at all times since the 7th day of January, 1909, exercised and performed all the duties, powers, and functions of said office of sheriff of McLean county, and is now exercising and performing the same.
The case came on for trial before the district court without a-jury on July 21, 1909, and the plaintiff offered .in evidence certain pages-of the minute book of the county commissioners of McLean county, from which it appeared that on January 7, 1909, at a regular meeting of the board of county commissioners, a resolution was passed reciting the division of McLean county and the creation of the new county of Sheridan by means of the vote taken at the general election held in November, 1908; that the segregation of Sheridan from McLean county was fully completed on December 24, 1908; that the defendant, Beck, a resident of the village of McClusky, formerly in the county of McLean, but now a resident of the county of Sheridan,had been elected, had qualified, and was then acting as and occupying-the office of sheriff of McLean county; that by reason of the fact that said defendant was not an elector of the county of McLean or a resident of the county in which the duties of the office are to be discharged, and therefore not qualified to hold the office of sheriff of said county, the same was declared to be vacant. A further portion of the minutes of the county commissioners was then offered, showing that at a meeting of said board on January 8, 1909, with all members present, “on ■motion Gilbert Holtan was appointed sheriff of McLean county,” and that on February 1, 1909, at a meeting of said board, “on motion the official bond of Gilbert Holtan, sheriff, was accepted, the same having [10] been approved as to form by tbe state’s attorney.” The paper containing the official oath and bond of Gilbert Holtan as sheriff was then •offered in evidence, and it, together with the offers made of parts of the records of the county commissioners’ proceedings, was objected to by defendant on the ground that all of such evidence was incompetent, irrelevant, and immaterial, in that it did not show, or tend to show, any legal appointment of plaintiff as sheriff of McLean county, or that any vacancy in the office of sheriff of such county existed at the time such appointment was made. Plaintiff then offered in evidence a paper designated as “primary election petition of John A. Beck,” ■containing, among other things, an affidavit of John A. Beck made on March 14, 1908, in which he deposed in the words, “I reside at Mc-Clusky in the county of McLean and state of North Dakota.” There was also offered in evidence a primary election poll-book for McClusky precinct of said McLean county for an election held June 24, 1908, on which the name of J. A. Beck appeared as that of one who voted in that precinct at that election. The offer of these exhibits was objected to by defendant for the same reasons given in his objection to the other •evidence. Plaintiff then testified that he was a resident of McLean •county as constituted at the time of the trial, and that he had executed •the oath of office and official bond offered in evidence. At the close of .his testimony, plaintiff rested his case, and defendant moved for a dismissal of the action on the ground that plaintiff had wholly failed by competent evidence to prove the allegations set out in his complaint, and had not shown himself entitled to hold the office of sheriff •or to recover in the action. This motion was denied by the court, and the defendant elected to stand thereon, and did not offer any evidence whatever in his own behalf.
The district court thereupon entered its findings of fact, which, among others, contained the following: “That said defendant was at the time of said election, and ever since has been, a resident and elector •within that territory which is comprised within the boundaries of said newly organized Sheridan county, and was not and is not a resident or elector of the county of McLean as it now exists and has existed since the 24th day of December, 1908.” It further found that the allegations of plaintiff’s complaint were true, and, as a conclusion of law, that the defendant, Beck, was disqualified to hold and ineligible to [11] •the office of sheriff of McLean county after the completion of the organization of Sheridan county; that a vacancy existed in the office of sheriff of McLean county on January 7, 1908; and that plaintiff was legally appointed to and qualified for said office, and was entitled to a judgment ousting defendant therefrom and requiring him to surrender to plaintiff the books, records, and property pertaining thereto. Defendant demands that the action be tried anew in this court, and specifies as error of the district court its findings that the defendant, Beck, was not a resident of McLean county as constituted at the initiation of the action; that by reason thereof the office of sheriff was vacant; and that defendant was legally appointed to and entitled to the same.
The first question presented for our consideration, therefore, is whether or not the findings of the court that defendant, Beck, was not a resident of McLean county as constituted on January 7, 1909, is supported by the evidence introduced for that purpose. As there was no conflicting evidence introduced-by defendant, if there is any competent proof whatever to support'the finding of the court, it will not be disturbed. If the finding is sustained, the conclusion necessarily follows that defendant was disqualified to act as sheriff of McLean county, and that by reason of such fact a vacancy existed in the office.
An examination of the evidence offered by respondent serves to show that there is no direct evidence that on January 7, 1909, Beck was not a resident of McLean county as then constituted. Plaintiff in offering in evidence the record of the proceedings of the county commissioners of McLean county on January 7, 1909, and subsequent dates, relies wholly upon a presumption arising from the fact of plaintiff’s appointment. The rule relied on is that “the exercise of the power of appointment and the issuing of a commission to an appointee is presumptive, but not conclusive, evidence of the existence of a vacancy in the office to which the appointment is made.” 9 Ene. Ev. p. 183. It is conceded by respondent that the county commissioners were without power to remove defendant from office, and that the part of their resolution reciting that after December 21, 1908, defendant, Beck, was not a resident of McLean county, is without evidential force. It is also conceded that in case defendant was not a resident of the county in which the duties of his office were to be discharged, on January 7, [12]*121909, such fact by operation of law rendered his office vacant. Rev. Codes 1905, § 422, subd. 7. If such vacancy in fact existed, then the board of county commissioners was vested with the right of appointment to fill the vacancy. Such appointment, however, must be made not only by formal action of the board, but “in writing.” Rev. Codes 1905, §§ 428, 431.
It is apparent from the section above quoted that the last act contemplated on the part of the appointing power is the issuance to the appointee of a writing in some form, whether it be denominated “commission” or “certificate of appointment.” Until this writing is executed, the appointment is not final and irrevocable, but may be reconsidered at any time before such certificate is issued and another person appointed to the office. Conger v. Gilmer, 32 Cal. 75. When issued, it “is manifestly the best evidence of the officer’s title, with or without accompanying evidence of the jurisdiction of the officer or body issuing the certificate as the general rules of evidence may require.” Throop, Pub. Offi. § 297. This writing is evidently the “commission” contemplated by the rule of evidence above quoted upon which respondent relies, which, when introduced in evidence, operates not only to raise a presumption of an existing vacancy in the office to which the party named in it is appointed, but serves also as evidence prima facie of his title to the office. Chandler v. Starling, 19 N. D. 144, 121 N. W. 198.
The appointment shown by the record of the proceedings of the county commissioners introduced in evidence by plaintiff and respondent is at best inchoate, and, in view of the objection made by appellant, the proof offered must be regarded as secondary and incompetent for the purpose of showing a valid appointment or of establishing title to the office. No attempt was made to show anything more than that a motion or resolution was passed by the board of county commissioners. Even if we assume that all formality in the matter of an appointment in writing may be dispensed with, it does not appear that the resolution adopted was in writing. No attempt was made to show that a certificate of appointment was at any time issued and was lost or destroyed, in order to lay the foundation for secondary proof of appointment. Such evidence, therefore, not only wholly fails to raise a presumption of an existing vacancy in office, but fails entirely to prove [13] the fact of appointment, or that plaintiff had acquired any title to the •office. It was therefore properly objectionable on all the grounds urged by appellant, and cannot be considered for the purpose of sustaining the finding of the court.
The affidavit of appellant sworn to by him on March 14, 1908, may be regarded as an admission by him that at that date his residence was at McClusky. This court will take judicial notice of the fact that the village of McClusky was at that time within the territory now embraced in the new county of Sheridan and outside of the boundaries of McLean county as constituted on and after December 24, 1908.
Appellant contends that the expression, “at McClusky,” can be taken •only to mean that appellant’s postoffice address was at that point, and that his actual residence might be at a point sufficiently distant therefrom to bring it within the limits of McLean county as at present constituted. He further contends that there is no sufficient identification -of John A. Beck thé defendant, with J. A. Beck, the party whose name appears upon the poll list of the primary election held in Mc-Clusky precinct on June 24, 1908; and that, even though the voter who is named was in fact the defendant, there is nothing to show that the portion of McClusky precinct in which he then resided was not within the present limits of McLean county. In our view of the entire -case, however, a determination of these points is not necessary or important, and it may therefore be assumed that on March 14, 1908, and June 24, 1908, appellant was a resident of McClusky precinct and living beyond the boundaries of McLean County as constituted after the segregation of Sheridan county on December 24, 1908. His residence thus assumed, it is claimed there arises a presumption applicable to a status such as possession, ownership, residence, and the like that, once shown to exist, it continues until the contrary is established by evidence either direct or presumptive. This presumption, though .'it has been recognized in many cases as existing, does not seem to be 'established as “a genuine rule,” and is “always disputable, sometimes entitled to considerable weight, but frequently liable to be rebutted by very slight circumstances.” 1 Jones, Ev. § 52; 4 Wigmore, Ev. § 2531.
Assuming, therefore, that defendant, on June 24, 1908, had his place of residence outside rf the limits of McLean county as now con[14] stituted, does it follow, as a reasonable presumption from the facts shown, that his residence at this place continued after the time that he qualified as sheriff of McLean county, claimed title to the property and emoluments of that office, and entered upon the exercise of its very important functions ? We have already noted that the presumption of continuity of residence may be rebutted by slight circumstances raised either directly or presumptively.
If it appears, in an action such as this, that the person against whom it has been commenced is guilty of usurping, intruding into, or unlawfully holding or exercising the office in question, the court is authorized not only to render judgment ousting and excluding him therefrom, but may in its discretion impose upon him a fine not exceeding $5,000.. Eev. Codes 1905, § 7359.' If he is falsely assuming or pretending to be or to act as a county officer when he is not such in fact, he is liable to fine and imprisonment. Eev. Codes 1905, § 8632. If he is wilfully exercising any of the functions of his office after the expiration of his term and the qualification of his successor, he is guilty of a misdemeanor. Eev. Codes 1905, § 8646. If, knowing his term to have expired or his office to be vacant, he refuses to surrender to his successor the books and papers appertaining to his office, he is also guilty of a misdemeanor. Eev. Codes 1905, § 8647. It is alleged in plaintiff’s pleading, and is one of the undisputed facts present in this case, that defendant holds a certificate of election to the office of sheriff of McLean county for a term of two years from January 4, 1909, has made and filed his official oath and bond, is exercising and claiming the right to exercise the duties of the office, and is refusing to turn over the books and papers belonging to said office, or to permit plaintiff to enter into the same. It follows that unless he has, between June 24, 1908, and the initiation of this action, transferred his residence from the county of Sheridan to McLean county, every act that he has performed as sheriff of McLean county is an unlawful act, and that he is guilty of a crime and misdemeanor, and is liable to fine, forfeiture, and imprisonment. In the face of a state of facts such as this, the slight and inconclusive presumption that his residence still continues in Sheridan county entirely disappears. “The law will not presume that a party has committed an unlawful act.” Kadlec v. Pavik, 9 N. D. 278, 83 N. W. 5. Such presumption is one of the [15] strongest known to the law, and clearly outweighs any presumption that a state of fact shown to exist continues unchanged for several months thereafter.
It is urged by the plaintiff in this action that the fact with reference to appellant’s place of residence was peculiarly within his own mind and most easily proved or disproved by him; and, if such residence was in McLean county, defendant might in a few words have given direct testimony that would have settled conclusively the entire matter, and that the fact that he sat mute and did not offer any testimony whatever “is most persuasive against him.” It will be noted, however, that the plaintiff, while attacking the title to office of one whom he admits is acting in the office, elected to rest his case entirely upon presumption. In such a ease appellant was entirely within his rights in also deciding to rest upon the much stronger presumption arising out of his incumbency of the office. Plaintiff might at any time, in presenting proof upon what he admits is “a vital point,” have called appellant to the stand, and under a statutory right of cross-examination have inquired of him as to his residence at and after the time of the segregation of the territory now comprising Sheridan county from that of McLean county, without in any manner binding or concluding himself by his statements. Schwoebel v. Fugina, 14 N. D. 375, 104 N. W. 848. The duty to furnish direct and positive testimony of any essential fact is certainly first the duty of the party having the burden of proof.
In an action of this character, it is incumbent upon plaintiff to show by clear and satisfactory evidence his title to the office claimed. He cannot rely upon the weakness of the defendant’s title. In this particular plaintiff has wholly failed. His evidence not only falls short of showing even presumptively a vacancy in the office, but also fails to show a valid and irrevocable appointment. As noted above, the presumptions are all in favor of defendant’s lawful tenure of the office at the time of the beginning of this action. As against this state of facts, plaintiff must show not only an actual vacancy existing therein, but a valid appointment thereto. “A ‘vacancy in office,’ within the meaning of the law, can never exist when an incumbent of the office is lawfully there and is in the actual discharge of official duty.” State [16] ex rel. Standish v. Boucher, 3 N. D. 389, 21 L.R.A. 539, 56 N. W. 142.
At the close of the evidence offered, the district court should have granted defendant’s motion 4o dismiss the action.
The judgment entered by the district court is, accordingly, reversed, and it is directed to enter a judgment dismissing the action.