The plaintiff town having chosen no health officers, the selectmen were, by law, such officers. Gen. St., c. 37, s. 4. In case of a vacancy in the office the selectmen could appoint. Gen. St., c. 39, s. 1. By appointing others to the office the selectmen resigned it, and a vacancy existed which was filled by the appointment.

It was sufficient that the persons appointed were health officers de facto. They were not parties to the suit, and the rights of the public and third persons were in question, and the title to the office could not be contested in this case. Tucker v. Aiken, 7 N. H. 113, 131; Blake v. Sturtevant, 12 N. H. 573; Carr v. Dodge, 40 N. H. 403, 409; Prescott v. Hayes, 42 N. H. 56, 58; State v. Carroll, 38 Conn. 449; Brown v. O’ Connell, 36 Conn. 432.

Exception overruled.