The Chairman: The report will be received.

The Clerk: Minority report offered by Senator Tomkins on behalf of Senator Browne:

To the Honorable, the Senate:

I beg leave to dissent from the majority report of the senate concerning Resolution No. 8, S., for the following reasons: The subject matter of Resolution No. 8, S., seeks to inquire into the following matters, to-wit: "1. The charges made to the governor in the proceeding for the removal of the said Herman L. Ekern as Commissioner of Insurance:

2. The proceedings had before the governor upon said charges and any proceedings or action thereon had subsequent thereto. 3. The fact surrounding the appointment of the said Lewis A. Anderson and the proceedings had thereon and subsequent thereto. 4. All matters relating to any attempt to take possession of said office and to remove said Herman L. Ekern by force or otherwise;" which are matters that the senate has no legal authority to decide; and any attempted decisions or finding made upon the resolution would be void and of no effect. The issues raised by the resolution are embraced in the one paramount question: Who has the title or right to the office of commissioners of insurance, Herman L. Ekern or Lewis A. Anderson? The action of the senate upon the resolution before it cannot affect this one issue one way or the other. The only way this issue: Who has the right to the office? can be determined, is by the courts, in the proper proceedings. One proceeding to determine this question has already been brought, and has been duly presented to the court, who now has the matter under advisement. If this action is not sufficient, then the matter can be tested by "quo warranto.'

The senate undoubtedly has the right to take testimony concerning the qualifications of Lewis A. Anderson before confirming him; but the pending confirmation of Anderson cannot be made an excuse for an attempt by the senate to go into the broad matters of inquiry contained in Resolution No. 8, S Nothing the senate may do concerning the confirmation can possibly put Herman L. Ekern in office, if his removal was valid, or displace him, if it was void.

Herman L. Ekern has possession of the office of Commissioner

18-S. J. Ap.

of Insurance. If he is Commissioner of Insurance, as contended by him, it is certainly illogical for this senate to consider the matter of the confirmation of Lewis A. Anderson. I am therefore in favor of putting over the confirmation of Lewis A. Anderson until it has been decided that he has been legally appointed Commissioner of Insurance. Then all issues pertaining to Anderson's qualifications can be inquired into.

Believing that this proceeding was without authority and an encroachment by one of the three branches of the state government upon the others, to-wit: the legislative, the executive and the courts, and not an orderly and expeditious course of procedure as defined by our courts", I cannot consistently subscribe to the majority report.

In making this minority report, I do it wholly upon my ideas of the law, and do not express myself one way or the other as to the merits of the controversy between Herman L. Ekern and Lewis A. Anderson, because, as I have stated before, this controversy can be determined by the courts and the courts only. Respectfully submitted.

Senator Kileen: Mr. Chairman, I have a minority report. The Clerk: Minority report offered by Senator Kileen: The question whether at the time of the appointment of Mr. Anderson there was a vacancy in the office of commissioner of insurance, which is substantially the only question which has been considered by this committee, is a judicial question which it is not within the jurisdiction of this committee or of the Senate to determine and as to which no opinion should be expressed, but the matter should be left to determination by the

courts.

That even were it within the jurisdiction of the committee of the senate to pass on this judicial question, it should not do so upon the testimony taken before the committee for the reason that there has been no appearance by counsel and not witnesses produced except on behalf of Mr. Ekern. It is also our view that consistently with the dignity of his office and of the respect due from him to the judicial department of the govern ment it would not have been proper for the governor, personally or by counsel, to participate in this hearing; nor in view of the fact that his appointment was before the Senate for confirmation would it have been proper for Mr. Anderson to have

appeared as a litigant before this body even upon its invitation.

We recommend that pending the determination by the courts of the title to the office of the commissioner of insurance consideration of the question of the confirmation of Mr. Anderson be deferred.

Respectfully submitted,

(Signed) E. F. KILEEN.

Senator Bosshard: Mr. President, I move that the majority report, as read, be adopted as the report of the committee of the whole, and thereafter reported to the senate, and that the two minority reports, as read, be rejected.

Senator Kileen: Mr. Chairman, I move that the minority report submitted by myself be substituted for the majority report.

The Chairman: You will hand your motion to the clerk of the senate.

Mr. Kileen: I move that my minority report be substituted for the majority report.

The Chairman: The question is, shall the motion of the senator from the 32nd, as amended by the Senator from the 9th, be adopted. Are you ready for the question?

Senator Husting: Mr. Chairman, I submit that the question is: Shall the motion of the senator from the 21st be amended by the motion of the senator from the 9th, before the adoption of the motion of the senator from the 9th.

The Chairman: The question is upon the amendment as offered by the senator from the 9th, as I understand it. Mr. Clerk, will you give the motion as you understand it?

The Clerk: The question is shall the amendment offered by the senator from the 9th to the motion made by the senator from the 32nd be adopted.

The Chairman: Are you ready for the question?

Senator Kileen: Mr. Chairman, I wanted to say just a few words in reference to the amendment offered.

As I said in my minority report, the proceeding had before the senate was an ex parte proceeding. What I mean by that is that it was a one-sided proceeding. Now, the answer to that, of course, is that the Governor and Mr. Anderson were both

notified and requested to be present by attorneys. This matter before the senate is only a question in reference to the condition of affairs that exists in reference to Ekern's removal. An order has been made by the Governor removing Mr. Ekern. Mr. Ekern continued to remain in office after that order was issued. An attempt was made to remove him from office. The case is now in circuit court for Dane county. An attempt is made on behalf of this senate to make findings of fact in reference to a case that is now in court. It would be beneath the dignity of the Governor of the state of Wisconsin to come in before a body and assist in the trial of an action that was pending in the circuit court for trial, and especially so before a body that had no jurisdiction to try and determine the facts. The question as to whether Mr. Ekern is out or not is purely a question for the court. The findings of fact on behalf of this senate cannot change that question one way or the other, so the trial that was had here was nothing more or less than a mock trial. It certainly would be beneath the dignity of the Governor of Wisconsin to come before the senate and assist in a mock trial where that case was on trial in the court, and it would be an insult to the court.

As a fair example, Mr. Chairman, of that proposition. I would put up this fact: Suppose that a case is being tried in the Circuit Court for Waushara County, the county in which I reside. Suppose that while that case was pending in court the county board of Waushara county should undertake to hear and make findings of fact in reference to the case that was before the court. If the county board should attempt to do that, in my judgment, Mr. Chairman, they would be guilty of a contempt of court, to interfere in the trial of an action that was before the court.

It was said here this afternoon, Mr. Chairman, that the only manner in which Mr. Ekern could bring out the facts in refer- . ence to this proceeding was by a proceeding had here. I take issue with the gentleman that made that statement. In a trial · of this action in quo warranto proceedings the facts can be gone into and determined in the court, and the only effect that the findings of this senate could possible have would be a sort of influence upon the court before the court had rendered its judgment, a sort of an influence to be extended out to the

court that is now trying this case, for the purpose of aiding and propping up Mr. Ekern in the trial of his lawsuit. I wouldn't care, Mr. Chairman, if I stood alone in this proceeding. I would file my minority report just the same, because, as an attorney at law, and as an officer of the court, I would not subscribe to a review by the senate of an order made by the Governor. The statutes of the state of Wisconsin conferred on the Governor of this state the authority to pass. upon the removal of Mr. Ekern. There is not any authority conferred upon this senate to review tha tproceeding. There is no authority conferred upon this senate to review the proceeding had by the Governor. That order made by the Governor stands, as a matter of fact, regardless of any proceeding that we may have here, regardless of any findings of fact. that we may make.

Now, then, what is the purpose of our findings of fact? To let it be known before the court renders its judgment, so that the matter can be made a matter of public talk before the court passes upon the question. It was said here this afternoon, and I take issue with that fact also, that the question as to Mr. Ekern's standing could not be determined in any way before the court now before whom it is being tried. All of the facts, practically all of the facts that were brought out here in this trial, were brought out in that trial, by affidavit. This gentleman that made the statement here this afternoon was the same man that made the argument before the court, but the statement that he made here and the argument that he made there were two entirely different propositions, two entirely different propositions. Now I say that so far as findings of fact are concerned, by this senate, they amount to nothing unless they do influence the court before whom the action is pending. They cannot have any other benefit or aid Mr. Ekern in any other way. And I said, as I started in, that it was an exparte proceeding. Do you think the Governor of Wisconsin would join in that proceeding and assist in trying a case that was pending in court? Do you think that Mr. Anderson would come down and engage in a trial of a proceeding, when his confirmation was before this senate to be heard, and attack the man that was holding office? He could not do it and maintain his dignity. The Governor of Wisconsin could not do it and maintain