State ex rel. Schumacher v. Markham

155 N.W. 917, 162 Wis. 55, 1916 Wisc. LEXIS 100

• Court: Wisconsin Supreme Court
• Decided: January 11, 1916
• Status: Published

Opinion

Winslow, C. J.

In this case it is held:

1. An order requiring a complaint to be made more definite and certain is not appealable under the present appeal statute. O’Connell v. Smith, 101 Wis. 68, 76 N. W. 1116.

2. The object of this statutory action is to oust the defendant from his office because of alleged criminal misconduct in the primary campaign and such ouster is manifestly a penalty or forfeiture equally with a forfeiture of money or prop■erty. See opinions upon former appeal. 160 Wis. 431, 152 N. W. 161.

3. Being an action to enforce a penalty or forfeiture for criminal misconduct, the defendant cannot be compelled to be a witness against himself therein. Sec. 8, art. I, Const.; Boyd v. U. S. 116 U. S. 616, 6 Sup. Ct. 524; Karel v. Conlan, 155 Wis. 221, 144 N. W. 266, and cases cited therein.

4. The purpose of the adverse examination in the present case being confessedly to prove by defendant himself that he was guilty of criminal violation of the primary law which would forfeit his right to hold the office of district attorney, the court properly held that he could not be compelled to answer, hence the order dismissing the proceeding was correct.

By the Court. — The appeal from the order requiring the complaint to be made more definite and certain is dismissed, and the remaining orders appealed from are -affirmed; the respondent to tax but one bill of costs.