with intent to defraud, knowing that the corporation had no money on deposit in the bank where the check was made. payable, is guilty of a violation of said section, if said check was presented and remained unpaid for five days after it became payable and payment thereof was refused because the corporation had no funds on deposit with which to pay the check.

I find from my investigation that but few states have a statute similar to ours and that the reported cases under such statute are very few.

It, of course, rests with you to determine whether all the essential elements constituting this statutory offense can be proved.

Fish and Game--Outlying Waters-Unlawful to catch pike in Green Bay and Lake Michigan during closed season therefor in inland waters.

HON. JOHN A. SHOLTS,

State Fish and Game Warden.

May 21, 1915.

In your recent communication you direct my attention to subd. (b), sec. 1498-2, secs. 4560a-47 and 4560a-48, Stats. You state that you are undecided as to whether or not pike may be taken during the period of March 1st to May 30th of each year, and ask my opinion on this question:

Sec. 1498-2 contains the following:

"It shall be unlawful for any person, company or corporation to offer for transportation or to transport to any point within or without this state any fish taken from the inland waters of this state, except as hereinafter provided."

Subd. (b) of said section then provides in part as follows:

"And provided further that pike taken from the outlying waters in this state may be transported in any quantity from any outlying water point within the jurisdiction of this state, to points within this state without being accompanied by the shipper, at any time, except during the close season for taking such fish from inland waters; such shipments to points without the state are hereby prohibited, except as provided in paragraph (a) of this section."

assumed to perform this function. In doing so, however, it appears that it followed the exact rule laid down in sec. 672 for the apportionment of assets between the towns. It does not appear, therefore, that either town has been damaged. The result is the same as it would have been had the apportionment been made by the authorities provided by sec. 672.

The supreme court of this state has decided in State ex rel. Graef v. Forest County, 74 Wis. 610, that the legislature may pass special laws creating new towns, and in State ex rel. Vandenhouten v. Vanhuse, 120 Wis. 15, that an act of the legislature validating proceedings forming a school district is a valid act, and that the validation relates back to the time of the formation of the school district.

Under these authorities I see no reason why ch. 17, Laws of 1915, is not in all respects a valid and constitutional enactment.

Insurance Regulation of rates-Our statutes do not regulate the rates or reserves of fraternal life insurance companies organized or licensed to do business prior to July 12, 1907.

May 25, 1915.

HON. H. M. LAURSEN,

Member of Assembly.

I have your letter of this date making the following inquiry:

"I wish to inquire if there is anything in the statutes requiring any fraternal societies to raise their rates or increase. their assets or reserves, and particularly as to subsecs. 2, 3, 15 and 16, sec. 1958, and subsecs. 22, 22m, 23, 24, 28 and 29, sec. 1959, Stats."

I have examined all the statutes relating to fraternal and life insurance, and particularly the sections referred to in your letter, and advise you that there is nothing in the statutes you mention nor in any Wisconsin statutes by which fraternal societies are or can be required to raise their rates or increase their assets or reserves.

The only provisions which at all attempt to regulate the rates and fix the reserves of fraternal societies are found in subsec. 2, sec. 1958, and these provisions apply only to fraternal beneficiary orders and societies incorporated or admitted to the state since July 12, 1907. This section requires such societies to charge a rate of assessment not lower than those deduced from the National Fraternal Congress Mortality Table, as therein set forth, and requires that they shall hold assets sufficient to provide for their other liabilities and their reserve liabilities. Even the above requirements do not apply to societies newly organized according to subd. (e) of said section. Societies incorporated or licensed in Wisconsin from other states prior to the above date were not then, and are not now, by law, required to conform to any statutory plan of rates or reserves.

Appropriations and Expenditures --Constitutional LawPublic Officers--Suit Costs-Bill to appropriate to O. H. Eliason, state veterinarian, expenses incurred in defense of Islander suit valid.

HON. GEORGE E. SCOTT, Chairman,

Joint Committee on Finance.

May 25, 1915.

Under date of April 28th you called my attention to Bill No. 526 S, now before the joint committee on finance, the same being entitled "A Bill to appropriate to O. H. Eliason, a sum of money therein named for expenses incurred in defending suit of slander brought against him as state veterinarian," and you ask for my opinion upon the following questions:

"1. Can the legislature lawfully appropriate money to Mr. Eliason to reimburse him for expenses incurred in defending this action?

"2. Will Bill No. 526 S be a valid law, should it be passed by the legislature, signed by the governor and published in due manner?"

In an opinion addressed to you under date of the 13th inst. upon the validity of Bill No. 245 S, to appropriate to

Herman L. Ekern a sum of money to reimburse him for expenses incurred in an action between him and Governor McGovern, involving his title to the office of insurance commissioner, it was said:*

"Where an officer is acting within the scope of his authoriity, is acting in good faith, and apparently in the public interest, in such cases, the respective governing bodies of the state or municipality may, in their discretion, reimburse such public officer under such circumstances."

To intelligently advise you in the instant case it has been necessary to acquaint myself very fully with all the facts connected with and surrounding the case of Hartwig v. Eliason.

In my investigation of this matter I have deemed it my duty to affirm the power of the legislature to pass the bill in question if possible. It is the duty of this department to uphold legislative enactments and to establish their validity whenever possible. That attitude should be the same when the request comes before the enactment of a bill as when the question is raised after it has become a law.

It may be conceded that, generally speaking, the state is not interested in slander suits brought against its officers and that it has no power to reimburse them for expenses incurred in the defense of such suits, unless, as a matter of fact, the suit was the result of bona fide official conduct on the part of the officer. In order to establish the power of the legislature to make the appropriation called for by the bill under consideration, it must appear that the litigation precipitated upon Dr. Eliason was the result of bona fide official conduct on his part. In other words, it should appear that official action taken by Dr. Eliason, acting in good faith, and for the benefit of the public interest, was the "proximate cause," so to speak, of the lawsuit. Public records and admissions made by Dr. Hartwig in testimony given by him at various times during the progress of the case establishes the following facts:

1. During the month of November, 1911, Dr. Hartwig held the office of state veterinarian.

2. On the 23rd day of December charges of official delinquency and malfeasance on the part of Dr. Hartwig were

*Pages 390, 395 of this volume.

filed with the governor and an investigation of those charges was followed by the resignation of Dr. Hartwig.

3. It is required by statutory provisions of many states that live stock from Wisconsin or elsewhere may not be brought into those states unless the same be accompanied by a certificate that such live stock has recently been subjected to the tuberculin test and found to be free from tubercular disease, which certificate must be signed, or countersigned, by the state veterinarian of this state.

4. There is no law of this state requiring the state veterinarian to either sign or countersign such certificates. Such, however, has long been the practice. It is also absolutely necessary in order to enable live stock owners of this state to ship cattle into such foreign states. It is evident that the state veterinarian cannot personally inspect all of the live stock of this state offered for shipment to foreign states, making it necessary for the state veterinarian to rely upon the honor and integrity of local veterinarians applying the tuberculin test, or making such other examination as may be necessary, when he countersigns such certificates. If he be not cautious in the matter, a certificate signed by him would. soon lose its value and the live stock interests of the state would experience embarrassment in shipping and selling live stock in foreign states.

5. Dr. Eliason qualified as state veterinarian January 2, 1912. Dr. Hartwig resumed his private practice. The testing of stock for shipping out of the state constituted a very substantial part of his practice. Dr. Eliason countersigned certificates made by Dr. Hartwig until October 4, 1912. On or about that date he refused to countersign any more of his certificates. For what reason I find no record evidence, but presumably for reasons which convinced Dr. Eliason that his course was in the interest of the public, as there is nothing anywhere to indicate that the action was taken for personal, spiteful or malicious purposes.

6. Immediately thereafter Dr. Hartwig employed attorneys who took the matter up with Dr. Eliason with a view of coercing him into countersigning Dr. Hartwig's certificates. Considerable correspondence passed between Dr. Eliason and these attorneys, from all of which it appears that Dr. Hartwig greatly resented the action of Dr. Eliason in this respect.