10th of January, 1913. Attached also is a copy of a notice to this office received on January 10th, 1913, from Commissioner Ekern that no papers should be filed or other action taken with respect to any such order by this department. On this day a certificate of appointment of Mr. Lewis A. Anderson as Commissioner of Insurance vice Herman L. Ekern, signed by the governor, is presented to this office for the signature and seal of the Secretary of State. Your opinion at your earliest convenience will be appreci ated. Very truly yours, J. S. DONALD. JSD-MEH A letter to the Governor advising him that the Secret a ry's signature to the order of appointment of Mr. Anderson was be ing withheld pending the opinion of the Attorney General: JANUARY 15th. 1913. HON. FRANCIS E. McGOVERN, Madison, Wisconsin. Dear Sir: Owing to the controversy in the discharge of Commissioner of Insurance Herman L. Ekern, and the appointment of a successor, I feel constrained to withhold my signature as Secretary of State to the certificate of appointment presented by you to this Department, pending an opinion by the Attorney General. The matter has been submitted to him. A copy of my request for his opinion is enclosed. Very truly yours, The opinion of the Attorney General: HON. J. S. DONALD, Secretary of State, Madison, Wisconsin. J. S. DONALD. JANUARY 17, 1913. Dear Sir: This department is in receipt of your communiIcation under date of the 15th inst. wherein you officially request an opinion as to what action you should take in refer vising you of the removal of Herman L. Ekern as commisence to the notification received by you from the governor ad sioner of insurance, and also in reference to the certification of the governor certifying to the appointment of Mr. Louis A. Anderson as commissioner of insurance. In reply thereto I will say that in my opinion a casual consideration of the duties of your office will point quite plainly to the answer to your question. Your office is that of secretary of state. You are the secretary of the state. The name of your office is in itself suggestive of your duties. The duties of a secretary of any organization are quite generally understood and it is in keeping with our general scheme of government that the duties of the secretary of state are not unlike those of the secretary of any other organization. It is almost universal that among other duties the secretary is required to keep the records of his organization and so the statute of our state, section 141, subdivision 1, provides that the secretary of state shall "keep a record of the official acts of the executive department of the state." Plainly this duty is purely ministerial and clerical. It matters not whether the act on the part of the executive be legal or illegal. So long as it is his act it is the duty of the secretary of state to keep a record thereof so that evidence of the same may be preserved in permanent form to the end that it may be given such potentiality and force as the law may ascribe thereto. It is no part of the functions of a secretary to pass upon the legality or illegality of the acts of the executive, nor is it within his prerogative to pass upon the acts of the governor which may or may not be given recognition upon the records of the state. Subdivision 2 of section 141 also provides that the secretary of state shall "keep the great seal and affix the same to and countersign all commissions and other official acts issued or done by the governor." This is simply in furtherance of the general idea that the secretary shall keep a record of the official acts of the executive and provide for their authenticity. The word "countersign" is defined by Webster to mean: "To sign on the opposite side of an instrument in writing, hence to sign in addition to the signature of another in order to test the authenticity." Hence you are not required to countersign the commissions or other official acts issued or done by the governor to signify that you either approve or disapprove of such act, but merely for the purpose of attesting to the genuineness of his signature and the great seal of the state is used for the same purpose. "The public seal of the state or government proves itself and authenticates the laws of such state. So the courts judicially notice the great seals of foreign governments or sovereigns; in like manner where officers act under official seals such seals usually authenticate the official character of the persons and prove themselves, and courts take judicial notice of the seals of courts of sister states." 25 A. & E. Eney. of Law, p. 81. The foregoing considerations clearly indicate that it is your duty to record all of the official acts of the executive as well as to countersign the same and affix the great seal of the state thereto; all of which is merely for the purpose of preserving an authentic record and enduring evidence of such offcial act. It is very plain that your refusal to properly record and countersign the act of the governor will not invalidate his legal action, nor will your complying with the requirements of the statute in this respect validate his illegal action. It simply does not affect the legality of his action one way other and you are therefore not called upon nor is it within your province to assume to exercise any discretion or supervis ory powers over any of his official acts. In this connection it is considered that the case of the State ex rel. Ackerman v. Dahl, 65 Wis. 510, is in point. his office. In that case there was a vacancy in the office of treasurer of a school district who later was appointed to fill the vacancy and presented his bonds to the director and clerk of the district for their approval within the proper time. The director approved the same but the clerk refused to approve it or file the same in The court says: "It is urged that, because the clerk of the school district refused to approve and file the relator's bond, the relator is not the treasurer of said district, and that there is still a vacancy in such office. We do not think such construction should be given to the law. The person who has been elected or appointed to an office, and who does all that is required of him by law to entitle him to hold the office, cannot be deprived of such office by any wilful or unjust refusal of the person or officer who is required to approve his official bond to give it his approval. If such a rule is to prevail, then the officer whose approval of an official bond is required may, in any case, by such wilful and unjust refusal, creat a in an office." vacancy The case of State ex rel. Bienvenu v. Wrotnowski, Secretary of State, 17 La. Ann. Reprts., is a case involving exactly the same question under consideration here. In that case the district court of New Orleans granted its mandate ordering Stanislas Wrotnowski, Secretary of State, to affix his official signature and seal of his office to the commission signed and issued by James Madison Wells, governor of the State of Louisiana, or, in default thereof, that the said Wrotnowski show cause to the contrary on Monday, the 11th day of May, 1865. Wrotnowski filed his answer to the relator's petition, and therein averred for reason why a peremptory mandamus should not be issued against him, as prayed for by the relators, that the commission referred to in the said petition was utterly null and void, and of no force, effect or validity whatever, because attempted to be issued by the governor without any warrant of law for so doing, and in direct violation of the constitution and laws of the State; that he cannot be compelled to lend the sanction of his name as Secretary of State, by countersigning such illegal commission and affixing the great seal of state thereto; that the office of sheriff of the parish of Orleans has been held since March 16, 1864, and is now held under a commission issued in pursuance of the laws and constitution of the State of Louisiana, by Alfred Shaw, which commission does not expire until the next regular election for sheriff, and that the governor is without any authority to supersede the said Shaw, as Sheriff aforesaid, by the appointment of the relator, and he prayed that the application of the relators for a peremptory mandamus be refused. The court said: Divested of all extraneous, superfluous and irrelevant surroundings, what is the real question to be solved? We apprehend it to be this: Is the secretary of state, under the constitution and laws of the state of Louisiana, a mere ministerial officer, as regards the authorization by him of official acts; or is he, under the constitution and laws, vested with a discretionary and supervisory power, which enables him, before executing the functions by law imposed on him in this particular, to judge for himself whether such official acts as need his ministry are constitutional or unconstitutional, legal or illegal, and to affix or withhold from such acts, at his option, according to his discretion, his official signature and the impress of the great seal of the State? . . The secretary of state is not to suspend his action to inquire why and wherefore any appointment by the governor is made. His duty is plain; he is not directed, but ordered by law, to perform it. When commissions from the governor need authentication, he shall affix his official signature and the public seal of state, for these are official acts. Whatever improvidence or illegality there may be in the issuing of commissions, that concerns not him. His authenticating any official act can never compromise him; for he has no discretion to exercise regarding it. It is the duty of the governor to fill vacancies. In elective offices he cannot remove an incumbent; but the appointment to fill a vacancy does not operate a removal of the previous incumbent because no removal can so be made; the office is vacant, or it is not vacant; if it is vacant, it is properly filled by the last appointment; if it is not vacant, the first incumbent cannot be disturbed. What injury, then, could by any possibility result to the first incumbent by the new appointment, if it were illegally made? It would be to him damnum absque injuria." It seems unnecessary to prolong this opinion further. gard your duty in the premises to be clear and unequivocal, It matters not to you whether the order removing Mr. Ekern from office was legal or illegal and in giving this opinion that question has not been considered at all. It is your duty to file the appointment of Mr. L. A. Anderson sent to you by the gov ernor, as well as the notice of removal of Mr. Ekern, countersign the same and affix the great seal of the State thereto. Very truly yours, ОР W. C. OWENS, Notice from Mr. Ekern of the suspension of Mr. Anderson as actuary in the Insurance Department: Hon. J. S. DONALD, Secretary of State, City. JANUARY 18, 1913. Dear Sir: Inclosed please find copy of notice suspending Mr. L. A. Anderson from his duties as actuary for the depart |