Mr. Wilbur, in response to the governor's together to promote his candidacy for speakquestions, testified substantially as follows: er,-a political committee as generally unI am clerk in this office. This was said in derstood. Ekern was the most active person. my presence between you and Mr. Ekern. Assemblyman Holmes was also active. I He said Mr. Hull was hostile to him, be- do not know definitely as to anyone else. cause he was supporting Johnson. That he They were acting as a committee for Mr. had the caucus nomination to a certainty. Johnson as I understood it. I do not know You said, Is his hostility because of belief that any statement was filed under the corthat you are supporting Johnson? Ekern rupt practices act regarding Mr. Johnson's replied in the affirmative. You inquired as candidacy, and did not seek any information to what the fact was. He answered that he on that point before filing the charges. The favored Johnson and Dr. Goff. You in activity I referred to in the charges referred quired as to what there was in the rumor to the actual handling of Johnson's camof his having engaged rooms for the politi-paign. His neglect of duty mentioned in cal headquarters of Johnson. He replied the charges consisted of his supporting that he had engaged the rooms. You in- Johnson's candidacy, and of campaigning in quired whether it was true that he had dis- his interest. Mr. Ekern came to the govcussed the speakership matter with mem-ernor's office in response to a telephone bers of the legislature, stating that there communication from the governor, transwas a contest between yourself and Senator La Follette, and that, in the speakership contest, members must stand for or against the senator and for or against you, and that he represented those who were against you. He replied in the affirmative. You inquired as to whether he had stated to different members that you were not to have anything to do with the organization of the assembly. He replied in the affirmative. You then stated there was no fight or contest between yourself and the senator, save a fictitious contest used for po litical purposes by certain men for personal reasons. He replied that he was glad to hear that. You informed him that the statute prohibited the insurance commissioner from being politically active, and insisted that he conform thereto; that he close the headquarters which he had opened, and re-ship contest, or there would be a new comfrain from further participating in the speakership contest both on the surface and in fact. He replied that Johnson now had the headquarters, and he did not know what Johnson would do about the matter. You replied that you were not asking what Johnson would do. You were simply in-ernor in the state of Wisconsin, and he was sisting that that night he close the headquarters which he had opened; that there was but one governor in the state and his offices were in the east wing of the State Capitol, and not the north wing. Then Mr. Ekern got up and said he would endeavor to comply with your wishes, and the interview closed. mitted by me at the governor's request. There was some conversation as regards Senator La Follette's attitude in the speakership contest, but the general talk was as to whether the senator was interfering presently. The question came up as to Ekern closing the headquarters which he had opened. He did not say that he had not opened the headquarters. When the closing of the headquarters was demanded, he said Johnson was now in charge and he was not able to say what Johnson would do. The governor demanded that he close the headquarters which he had admitted that he opened. When he referred to Johnson being now in charge, the governor said he would have no splitting of hairs, and that Ekern must close the headquarters and refrain from further participation in the speaker missioner of insurance. Ekern said that if there had been any activity in the speakership contest on his part, it was unintentional, and he would refrain from anything further, and it was then that the governor assured him that there was but one gov located in the east wing of the Capitol. Mr. Ekern testified in his own behalf, in effect, as follows: I had no substantial opportunity to prepare for this hearing. Just time to call my attorneys by telephone and make my appearance. I have called some witnesses since we appeared and made answer. I have had no opportunity to consult with my counsel prior to appearing at the hearing, nor with any witnesses. It The witness testified in response to interrogatories by Mr. Aylward: I talked the matter over with the governor before mak-is necessary for a proper presentation of ing the charges. I made the charges on information and belief. I have other information than what has been testified to. In the charges I conformed to the wording of the statute. I do not know as to Johnson having a formally organized committee. He had one in the sense that he had men working my defense that I should have opportunity to consult with counsel, and to procure and consult with witnesses, and I protest against the hearing in advance of such opportunity. Mr. Johnson, in official work, has been much in my office. I think he was there on New Year's Day. I then talked with Mr. Gif fice. ford over the telephone at Johnson's re- governor ought to dictate in the speakerquest, in respect to the rooms. I supposed ship matter. He charged me with having I was doing an act of ordinary courtesy. violated the law, and demanded that I close The next day Gifford asked me what was the Johnson headquarters, threatening that wanted in the rooms, and I replied, Nothing | if I did not he would remove me from ofspecial except, possibly, some more chairs. I though then that Johnson would see him right away, and paid no more attention to it.Johnson and I went to the hotel for lunch on Monday, the 6th of January. Gifford was told that the rooms were for John-ing the headquarters? As I said that night, son. I never went near them, nor had anything to do with them, nor did I ever visit them while Johnson had them, nor send anyone there, nor assume any responsibility in respect to them. Johnson did not have any political committee to my knowledge or any campaign manager. I did not act in regard to the matter, directly or indirectly. I spoke favorably of Johnson for speaker, and that I personally favored him, and I spoke favorably for Dr. Goff. I asked Mr. Richards to call on me, which he did, and we discussed the speakership matter,I making known my position in respect to it. I expressed the idea that Johnson was a strong candidate and was likely to win. In talking with members I referred to the general differences between the governor and Senator La Follette, but that was not intended to influence the speakership. It referred to a purely political contest which had been on for some time. When I re ferred to the subject of taking sides, it had reference to the general contest, the general political situation. What I said to the members of the legislature was not to influence them in favor of the man I wanted elected speaker. I had a broader purpose in mind. I may have mentioned the speakership matter in letters. I have not spoken to many people about Johnson's candidacy. I don't think I ever said that you [the governor] should have nothing to say in respect to who should be speaker. I claim I have a right to have my opinion, the same as anyone else. I never thought expressing of an opinion was managing a political campaign. I helped draw the corrupt practices act, and we didn't understand it would work that Governor: Did you do anything about closing the headquarters? Ekern: Have I done anything about clos I had nothing to do with it. Governor: You understood the question, don't repeat it. about closing them. Ekern: There was nothing for me to do Governor: The evidence is closed. the evidence closed here at all. Mr. Aylward: I am not satisfied to have Mr. Ekern: I appeal for fairness and the first part of the conversation. As the justice. The governor has just brought out governor delivered his ultimatum, as it has been called, which ended our interview, I said you don't mean that. I have been scrupulous in observing the law, and it is my intention to do so. I have complied with the strictest construction that anyone has put upon it, and I propose to do that in the future, and from you, as governor, I am willing to accept the strictest construction that you can put upon it. I am willing to do everything that can be properly done. I know what happened. It isn't as though Governor: I don't care to hear any more. you were talking to a man not present at the time. ford on the telephone, and tell him I had nothing to do with the rooms, if that was what you wished, and you said, No, that was not satisfactory, that I must go to the hotel and close the headquarters that night. I denied I opened the rooms; but you insisted, in spite of that, upon my closing the Johnson headquarters. Mr. Ekern: I said I would call Gif Governor: I said, if Johnson is there, you put him there. You opened those headIf quarters, and you must close them. someone else opened them, I would ask him to close them. If it inconveniences Mr. Johnson I am sorry; but you must close the headquarters that you opened. I don't care to hear any more testimony, or take any more time in this matter. way. I have not served on any political committee or as manager of the political campaign for Johnson or any other person. At the conversation I had with the governor, he asked me if I thought Johnson was going to be elected. I replied in the affirmMr. Aylward: I haven't finished Mr. Ekative. He then asked about my running ern's testimony, and have present to testihis quarters for him, which I denied. Ify, Assemblyman Johnson, Mr. Beedle, told him about my connection with engag-former insurance commissioner, and I want ing rooms at the Avenue Hotel. I confessed freely that I favored Johnson, and that I had said there was a fight on between him and La Follette. I also expressed the opinion that I did not think the to also present the testimony of Lieut. Gov. Morris. I believe justice affords Mr. Ekern a right to have the testimony of his witnesses taken. Governor: We would go into the matter We have Subsequent proceedings resulting in the appeal. more fully if there was time. heard all the testimony which time permits. It must be borne in mind I have personal knowledge which no testimony can modify concerning Mr. Ekern's own admissions on the evening he was here, as to his participation in the management of Mr. Johnson's campaign, and what he did in reference to it, so I shall find Mr. Aylward: Mr. Wilbur has testified to that conversation. Governor: I was here myself and heard the conversation. Ekern: You refuse to permit my recollection of that Governor: You have gone over the whole transaction. You were notified at the outset that the hearing would terminate before 12 o'clock. You were called at 11 o'clock. You have had more than three quarters of an hour to testify. I now terminate this hearing. Mr. Aylward: One thing more, Governor; it won't take but a minute. The question is about Mr. Ekern being political manager for Mr. Johnson in the speakership contest. Mr. Johnson is present, the one man above all others who would know. Judge Rosa: My name has been brought into this, and I think I ought to testify to what happened, from beginning to end. Governor: You may testify if it will not take over five minutes. Judge Rosa: It will take more than five minutes. Governor: A more extended hearing is not allowed now. I would be glad to hear the rest of the testimony, but, of course, you don't know any more about it. I have ended the hearing. Mr. Aylward: Mr. Ekern has only had three quarters of an hour in which to present evidence respecting the question of whether he shall be dismissed from office. I move that the complaint be dismissed because there is no evidence to sustain the charges. Governor: The motion is denied. Mr. Aylward: A person accused, after testimony has been offered, is entitled to be heard by counsel. Governor: Desist from further argument. It is perfectly apparent you are trying to protract the hearing till after 12 o'clock, and I shall not permit it. I don't intend anything to interfere. My decision is to sustain the charges, to find Mr. Ekern guilty as charged, and order his removal from office for the reason stated in the complaint and evidenced by the proof submitted to me. I shall sign a written order to this effect as soon as it can be prepared. An order of removal was duly prepared and signed. Defendant Anderson was appointed successor to appellant, and, having, in form, qualified for the place, demanded possession of the office quarters, books, and papers, and the demand was refused. Forcible compliance therewith, under orders from the governor, being threatened, and seeming to be imminent, appellant caused his complaint to be prepared, setting forth the facts aforesaid, his claim in good faith to be the commissioner of insurance, notwithstanding the removal order, and that such order was made without authority of law, and thereon applied for injunctive protection from being forcibly interfered with in his possession. Under the governor's order, defendant Essmann attempted to forcibly install Anderson in appellant's place. While Mr. Essmann was in the act of beating down the office door for the purpose of gaining entrance to the official rooms, and expelling appellant, and a serious breach of the peace to accomplish such result was impending, the temporary restraining order applied for was granted and served. The efforts to obtain forcible possession of the office thereupon ceased. Thereafter, the complaint was amended, and supplementary affidavits were filed which, in the whole, set forth the facts fully from appellant's standpoint, and that continuance of the temporary injunction was essential to prevent unlawful interference with his possession, and, on the whole record, asked therefor, continuing the injunction pending the final result of the litigation. Upon such record and numerous affidavits filed in defendants' behalf, not changing the appearance materially as to whether appellant was entitled to remain in the undisturbed possession of the office, and that forcible disturbance thereof could only be prevented by judicial authority, the case was submitted to the court, resulting in a decision thus: The court will not assume jurisdiction to review the acts of a co-ordinate department of the government, unless power to do so be clearly given by law. If the governor was without power or duty to forcibly dispossess Mr. Ekern in the manner attempted, the court has power to enjoin such interference, regardless of the official status of the offender; but whether such power or duty exists need not be decided because of the conclusion on another point fatal to plaintiff's application for pro tection. The court will not interfere to protect a person in possession of an office from being forcibly dispossessed by another having the prima facie right, unless such person is at least an officer de facto, Whether Mr. Ekern has a de facto right Trelevan, 31 Wis. 147; Brown v. Cohn, 85 to the office depends upon whether Ander-Wis. 1, 20 L.R.A. 182, 54 N. W. 1101; son has the de jure right. The court can- Oelbermann v. Ide, 93 Wis. 669, 57 Am. not determine the former without determin- St. Rep. 947, 68 N. W. 393; Marsh v. Niching the latter by passing upon the validity ols, S. & Co. 128 U. S. 605, 32 L. ed. 538, of the removal, so the rule that precludes 9 Sup. Ct. Rep. 168; Baxter v. State, 15 trial of the title de jure in the equity ac- Wis. 489; Smeltzer v. White, 92 U. S. tion also precludes trial of the title de 390, 23 L. ed. 508; Jeter v. State, 1 M'Cord, facto, as ruled in Barendt v. McCarthy, 160 L. 233. Cal. 680, 118 Pac. 228. It follows that this case is ruled by Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169. From the order thus entered, the appeal was taken. After the cause was submitted for decision, a resubmission was ordered on these propositions: Question 1. Does § 970 of the statutes require that due process of law, as guaranteed by the Constitution, be pursued in removing an officer? Question 2. Does due process of law in such a case entitle the officer attempted to be removed to a reasonable notice of the hearing and of the particulars of the charge, a reasonable opportunity to be heard in person and by counsel, to know the adverse evidence to be considered, the right to cross-examine the opposing witnesses, and present all material evidence in his own behalf? The governor had no jurisdiction to remove Commissioner Ekern. State ex rel. Gill v. Watertown, 9 Wis. 254; State ex rel. Danforth v. Kuehn, 34 Wis. 229; State ex rel. Kennedy v. McGarry, 21 Wis. 496; State ex rel. Starkweather v. Superior, 90 Wis. 612, 64 N. W. 304; State ex rel. Velie v. Morgan, 130 Wis. 293, 110 N. W. 245; State ex rel. Wagner v. Dahl, 140 Wis. 301, 122 N. W. 748. A member of the assembly desiring or seeking to be chosen as speaker of the assembly, although he may have friends or members interested or working in his be half, is not, under the election laws and corrupt practices act of the state of Wisconsin, "a candidate." Tenney v. State, 27 Wis. 387; State ex rel. Wood v. Baker, 38 Wis. 71; Conger v. Gilmer, 32 Cal. 75; Police Comrs. v. Louisville, 3 Bush, 597; Rogers v. Jacob, 88 Ky. 502, 11 S. W. 513; Speed v. Crawford, 3 Met. (Ky.) 207; Magruder v. Swann, Question 3. If an order for the removal of an officer charged in such a proceeding be made, without according to him these privi-25 Md. 173; State ex rel. Carson v. Harrileges, is it valid? Question 4. Is it a jurisdictional requirement of an order under the removal statute, that it be based on evidence taken according to the essentials of due process of law, which in some reasonable view sustain the charges against the person accused, which will warrant his removal, and if so, was such a case made as to Mr. Ekern? Messrs. John A. Aylward and M. B. Olbrich, for appellant: No commission and no official act of the executive is complete until the same has been countersigned by the secretary of state and the great seal affixed thereto. son, 113 Ind. 434, 3 Am. St. Rep. 663, 16 N. E. 384; People ex rel. Nichols v. County Canvassers, 129 N. Y. 395, 14 L.R.A. 624, 29 N. E. 327; State ex rel. Mack v. Torreyson, 21 Nev. 517, 34 Pac. 870; State ex rel. Clarke v. Irwin, 5 Nev. 111; Seaman v. Baughman, 82 Iowa, 216, 11 L.R.A. 354, 47 N. W. 1091; Wheelock's Election, 82 Pa. 297; Stinson v. Sweeney, 17 Nev. 309, 30 Pac. 997. The primary and election laws and the corrupt practices act, except as otherwise specified, relate only to elective offices. The statutes having provided that the removal may be made "by the governor upon satisfactory proof," this court will examine the record to ascertain if the removal was arbitrarily made, or if there was a clear case of abuse in making the removal. State ex rel. Miller v. Barber, 4 Wyo. 409, 27 L.R.A. 45, 34 Pac. 1028; State ex rel. Fleming v. Crawford, 28 Fla. 441, 14 L.R.A. 253, 10 So. 118; Griswold v. Pitcairn, 2 Conn. 85; Church v. Hubbart, 2 State ex rel. Danforth v. Kuehn, 34 Wis. Cranch, 187, 2 L. ed. 249; The Santissima Trinidad, 7 Wheat. 283, 5 L. ed. 454; 2 229; State ex rel. Willis v. Prince, 45 Wis. Bl. Com. 346, 347; Story, Conf. L. § 643; 610; State ex rel. Starkweather v. Superior, Hamilton v. State, 61 Md. 14; Marbury v. 90 Wis. 612, 64 N. W. 304; State ex rel. Madison, 1 Cranch, 137, 2 L. ed. 60; Atty. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. Gen. ex rel. Rich v. Jochim, 99 Mich. 358, 587; State ex rel. Wagner v. Dahl, 140 23 L.R.A. 699, 41 Am. St. Rep. 606, 58 Wis. 301, 122 N. W. 748; Atty. Gen. ex rel. N. W. 611; Harrington v. Pardee, 1 Cal. Taylor v. Brown, 1 Wis. 513; Gillan v. NorApp. 278, 82 Pac. 83; People ex rel. Ewing mal Schools, 88 Wis. 7, 24 L.R.A. 336, 58 v. Forquer, Breese (Ill.) 68; Dolan v.IN. W. 1042. If court will not terminate controversy, 1299; State ex rel. Milwaukee Medical Colit should preserve status quo. lege v. Chittenden, 127 Wis. 468, 107 Wis. 2 High, Inj. 3d ed. § 1315; Stenglein v. 500; Schiltz v. Roenitz, 86 Wis. 31, 21 L.R.A. Saginaw Circuit Judge, 128 Mich. 440, 87 483, 39 Am. St. Rep. 873, 56 N. W. 194; N. W. 449; School Dist. v. Weise, 77 Minn. Quimby v. Hagen, 54 Vt. 132; Shurtleff v. 167, 79 N. W. 668; Palmer v. Foley, 45 United States, 189 U. S. 311, 314, 47 L. How. Pr. 110; State ex rel. Fairbanks v. ed. 828, 831, 23 Sup. Ct. Rep. 536; Reagan Superior Ct. 17 Wash. 12, 61 Am. St. Rep. v. United States, 182 U. S. 419, 425, 45 L. 893, 48 Pac. 741; Neeland v. State, 39 Kan. ed. 1162, 1164, 21 Sup. Ct. Rep. 842; Ex 154, 18 Pac. 165; Huntington v. Cast, 149 parte Garland, 4 Wall. 378, 18 L. ed. 370; Ind. 255, 48 N. E. 1025; Parsons v. Durand, Lucas v. Futrall, 84 Ark. 540, 106 S. W. 150 Ind. 203, 49 N. E. 1047; Landes v. Walls, 667; Patton v. Board of Health, 127 Cal. 160 Ind. 216, 66 N. E. 679; Guillotte v. 388, 78 Am. St. Rep. 66, 59 Pac. 702; KenPoincy, 41 La. Ann. 333, 5 L.R.A. 403, 6 So. nedy v. Board of Education, 82 Cal. 483, 22 507; State v. Alexander, 107 Iowa, 177, 77 N. Pac. 1042; People ex rel. Simpson v. DenW. 841; Reemelin v. Mosby, 47 Ohio St. man, 16 Colo. App. 337, 65 Pac. 455; Ben570, 26 N. E. 717; Pottsville Town Coun- son v. People, 10 Colo. App. 175, 50 Pac. cil's Appeal, 1 Monaghan (Pa.) 705, 15 212; Coleman v. Glenn, 103 Ga. 458, 68 Atl. 730; Kerr v. Trego, 47 Pa. 292; Jack-Am. St. Rep. 108, 30 S. E. 297; Jacques v. son v. Powell, 119 La. 882, 44 So. 689; Little, 51 Kan. 300, 20 L.R.A. 304, 33 Pac. Lucas v. Futrall, 84 Ark. 540, 106 S. W. 106; Page v. Hardin, 8 B. Mon. 648; Ren667; Seneca Nation v. Jimeson, 62 Misc. 91; shaw v. Cook, 129 Ky. 372, 111 S. W. 377; 114 N. Y. Supp. 401; Davies v. State, 30 Ohio Todd v. Dunlap, 99 Ky. 460, 36 S. W. 541; C. C. 527; Hardy v. Reamer, 84 S. C. Andrews v. King, 77 Me. 224; State v. Don487, 66 S. E. 678; Casey v. Bryce, 173 ovan, 89 Me. 448, 36 Atl. 982; Ham v. Ala. 129, 55 So. 810; Hollar v. Cornett, 144 Board of Police, 142 Mass. 90, 7 N. E. Ky. 420, 138 S. W. 298; Barendt v. Mc- 540; Cull v. Wheltle, 114 Md. 58, 78 Atl. Carthy, 160 Cal. 680, 118 Pac. 228; Hotchkiss 820; Miles v. Stevenson, 80 Md. 358, 30 v. Keck, 86 Neb. 322, 125 N. W. 509; Chain Atl. 646; Harman v. Harwood, 58 Md. 1; Belt Co. v. Von Spreckelsen, 117 Wis. 106, Dullman v. Willson, 53 Mich. 392, 51 Am. 94 N. W. 78. Rep. 128, 19 N. W. 112; People ex rel. Metevier v. Therrien, 80 Mich. 187, 45 N. W. 78; Hallgren v. Campbell, 82 Mich. 255, 9 L.R.A. 408, 21 Am. St. Rep. 557, 46 N. W. 381; Townsend v. Sauk Centre, 71 Minn. 379, 74 N. W. 150; State ex rel. Brennan v. Walbridge, 62 Mo. App. 162; State ex rel. Reid v. Walbridge, 119 Mo. 383, 41 Am. St. Rep. 663, 24 S. W. 457; State ex rel. Denison v. St. Louis, 90 Mo. 19, 1 S. W. 757; State ex rel. Hastings v. Smith, 35 Neb. 13, 16 L.R.A. 791, 52 N. W. 700; Hagerty V. Shedd, 75 N. H. 393, 139 Am. St. Rep. 725, 74 Atl. 1055; State, Markley, Prosecutor, v. Cape May Point, 55 N. J. L. 104, 25 Atl. 259; State ex rel. Haight v. Love, 39 N. J. L. 14; State, Bradshaw, Prosecutor, V. Camden, 39 N. J. L. 416; People ex rel. Maloney v. Douglass, 195 N. Y. 145, 87 N. E. 1070; State ex rel. Caldwell v. Wilrel. Atty. Gen. v. Hawkins, 44 Ohio St. 98, 5 son, 121 N. C. 425, 28 S. E. 554; State ex lan, 64 Ohio St. 532, 60 N. E. 627; Biggs N. E. 228; State ex rel. Atty. Gen. v. Hogv. McBride, 17 Or. 640, 5 L.R.A. 115, 21 Pac. 878; Com. ex rel. Bowman v. Slifer, 25 Pa. 23, 64 Am. Dec. 680; Willard's Appeal, 4 R. I. 597; McDowell v. Burnett, 92 S. C. 469, 75 S. E. 873; State ex rel. Hitchcock v. Hewitt, 3 S. D. 187, 16 L.R.A. 413, 44 Am. St. Rep. 788, 52 N. W. 875; McCully v. State, 102 Tenn. 509, 46 L.R.A. 567, 53 S. W. 134; Honey v. Graham, 39 Dietz v. Neenah, 91 Wis. 422, 64 N. W. Tex. 1; People ex rel. Murphy v. McAllister, Under the certificate of appointment which plaintiff holds, he has yet two years to serve, and it is presumed that he is still entitled to the office. Rochester & G. Valley R. Co. v. Clarke Nat. Bank, 60 Barb. 234; Kinyon v. Duchene, 21 Mich. 498; Norris v. State, 22 Ark. 524; Kaufman v. Stone, 25 Ark. 336; Sawyer v. Knowles, 33 Me. 208; Urmston v. State, 73 Ind. 175; State ex rel. Coffey v. Chittenden, 112 Wis. 569, 88 N. W. 587; State ex rel. McCoale v. Kersten, 118 Wis. 287, 95 N. W. 120; State ex rel. Gill v. Milwaukee County, 21 Wis. 443; State ex rel. Rinder v. Goff, 129 Wis. 668, 9 L.R.A. (N.S.) 916, 109 N. W. 628; Ward v. Sweeney, 106 Wis. 44, 82 N. W. 169; Dubuc v. Voss, 19 La. Ann. 210, 92 Am. Dec. 526; State ex rel. Butler v. Callahan, 4 N. D. 481, 61 N. W. 1025; State ex rel. Moore V. Archibald, 5 N. D. 359, 66 N. W. 234. The issuance of the injunction prayed for involves no interference with executive acts. Re Fire & Excise Comrs. 19 Colo. 482, 36 Pac. 234; Marbury v. Madison, 1 Cranch, 137, 170, 171, 2 L. ed. 60, 71; Atty. Gen. ex rel. Bashford v. Barstow, 4 Wis. 567. Section 970 of the statutes requires that due process of law, as guaranteed by the Constitution, must be pursued in removing an officer. |