15 Wash. 342 | Wash. | 1896
Lead Opinion
The opinion of the court was delivered by
At a municipal election held in the
The position of the relator herein seems to be that the bond which was filed in the quo warranto proceeding not only stays the proceedings but suspends the judgment of ouster, so that he may, pending the appeal, continue to exercise the functions of the office from which the judgment, by its terms, expressly excluded him. On the other hand, the respondent contends that a bond to stay proceedings, conditioned as required by law, will not stay or suspend a judgment rendered in a proceeding upon an information in the nature of a quo warranto to determine the title to a public office. Which one of these propositions is correct, is the first question for our determination.
Our statute (Laws 1893, p. 123, § 7) provides that,—
“ An appeal shall not stay proceedings on the judgment or order appealed from or on any part thereof, unless the original or a subsequent appeal bond be*345 further conditioned that the appellant will satisfy and perform the judgment or order appealed from in case it shall be affirmed, and any judgment or order which the supreme court may render or make, or order to be rendered or made by the superior court, and (where such condition is applicable) shall pay all rents of or damages to property accruing during the pendency of the appeal, out of the possession of which any respondent shall be kept by reason of the appeal.”
This provision is quite general and comprehensive in its application, but it will be observed that it only prescribes what shall be the conditions of bonds which must be filed in order to stay proceedings on judgments and orders appealed from, and does not, either directly or by necessary implication, purport to suspend or destroy the force and effect of such judgments or orders. In fact, the only fair and reasonable implication from the language used is that it was the understanding and intention of the legislature that such judgments and orders should remain in force during the pendency of the appeal. The effect, then, of the appeal in the quo warranto case, after the statutory stay bond -was filed, was to leave the proceedings in the same situation they were in at the time the appeal bond was filed, and the appeal became effectual. Graves v. Maguire, 6 Paige, 379; Clark v. Clark, 7 Paige, 607; Burr v. Burr, 10 Paige, 166; First National Bank v. Rogers, 13 Minn. 407 (97 Am. Dec. 239).
If, therefore, the judgment of ouster deprived Mr. Fawcett of the office of mayor, and if such judgment is, as the respondent claims, self-executing, he was not restored to his former official position by the filing of a bond to stay proceedings.
The question then is, what is the effect and nature of a judgment of ouster from a public office. It seems to be the settled rule that such a judgment divests
And a judgment in favor of a relator in a proceeding by information to try the title to a public office is, from its very nature, self-executing. By its own force, and without the aid of - process or further action of the court, it accomplishes the object sought to be attained. So far, then, as such a judgment is concerned, there is nothing upon which a stay bond can operate, except an execution for costs, where, as in this ease, costs are awarded to the relator. As soon as the judgment was rendered in favor of Mr. Orr he became the mayor of the city of Tacoma and was entitled, by virtue of §685 of the Code of Procedure, to proceed to exercise the functions of the office, after qualifying as required by law, unless the judgment was absolutely annulled by the filing of the stay bond, and we are clearly of the opinion, as already intimated, that it was not.
The result of permitting such a judgment-to be suspended by an appeal and stay bond would, for obvious reasons, in many instances, in effect, completely destroy the relator’s remedy. If such a result had been intended, or Contemplated, by the legislature, they would, we think, have so stated, or at least would have required the filing of a bond by the appellant providing for the payment to the respondent of all damages sustained by reason of being deprived of the office during the pendency of the appeal, as they have done in cases where a respondent is kept out of the possession of property. The following authorities are in point on the questions here involved: People v.
In the case last cited the supreme court of Indiana ruled that a judgment suspending an attorney from practice executed itself, except as to costs, and that the granting of a supersedeas only suspended the right to enforce the collection of costs, and did not allow the attorney to practice pending the appeal. That is an interesting and instructive case, and the principle upon which the decision rests is equally applicable to the case at bar.
In Jayne v. Drorbaugh, supra, which was an action upon a supersedeas bond given in a proceeding to test the title to an office, the court held that the plaintiff, who was the successful party, had, under the statute of Iowa, which is almost identical with ours, the right to the possession of the office, and that the judgment was not suspended by the appeal and stay bond. The' conditions of the bond in that case were substantially in the language of the bond now under consideration, and in the course of the opinion the court said :
“ When it has been determined by the district or circuit court, in a proper proceeding, that a person is entitled to the possession of a civil office to which he claims to have been elected by the people, an appeal to this court should not have the effect to deprive such person of such office, pending the appeal, unless the statute in terms so provides. It is provided by statute that ‘ an appeal shall not stay proceedings on the judgment,’ unless a bond is filed, conditioned as provided by law. Code, § 3186. The bond sued on is thus con*348 ditioned. . . . We think, if the intent was that the bond and appeal should have the effect to prevent the plaintiff from taking possession of the office, the statute, in fixing the terms and conditions of the appeal bond would in clear and distinct terms have contained provisions to that effect. It is obvious, however, that it does not do so.”
This language, in our judgment, is peculiarly applicable to this case. And, in People v. Stevenson, supra, the same rule was announced, under a statute as to stay bonds in terms fully as general as our own.
Nor are the views we have expressed opposed to the decisions of this court in State, ex rel. Smith, v. Sachs, 3 Wash. 96 (27 Pac. 1075), and in State, ex rel. Bank, v. Superior Court, 12 Wash. 677 (42 Pac. 123). In the first of these cases this court held that the party appealing had a right to file such a bond as the statute provided for, and that it was the duty of the judge of the trial court to fix the amount thereof, as required by law. But we expressly refrained from determining the effect of such bond upon the judgment appealed from. The judgment from which the appeal was taken in that case was final, and the appellant was adjudged to pay the costs, and he therefore had an undoubted right to arrest proceedings for costs at least, and, hence, to file the only bond provided by law for arresting or staying proceedings; and all that was actually decided in the case in 12th Washington, above mentioned, relating to the effect of bonds to stay proceedings, was that the provision of the statute as to such bonds applied to and stayed proceedings on the order then under consideration. The próceeding for contempt was not instituted for the purpose of enforcing the judgment of ouster, for, as we have seen, that judgment was already executed, but to com
And besides, if the relator herein should be found guilty of contempt, as alleged, he-can appeal from the judgment of conviction, as in other cases, and have the proceeding reviewed by this court upon the merits. n
From the foregoing considerations it follows that the peremptory writ must be denied, and it is so ordered.
Scott, Dunbar and Gordon, JJ., concur.
Dissenting Opinion
(dissenting). — I am unable to concur in the foregoing opinion, for while I must concede that the conclusions therein seem to be justified by the authorities cited in their support, I cannot free my mind from the opinion which I have long entertained, that it was the intention of the legislature, in providing for appeals from certain judgments and orders, that, except when otherwise expressly provided, the effect of an appeal should be not' only to stay any affirmative action by which the judgment appealed from was sought to be enforced, but also to entirely suspend the force of such judgment during the pendency of the appeal. All the legislation upon the subject seems to indicate that such was the intention of the legislature. It has greatly extended the right of appeal and made it apply to
But it is said that if a judgment of this kind could he suspended, the relator would be deprived of any
Public policy will be best subserved by such a construction of the legislation as to appeals as will make the rights of appellants in all classes of cases as nearly uniform as circumstances will allow. When a general rule exists it should be applied to every case possible, and exceptions should only be recognised when they have been expressly provided for or are absolutely necessary to the protection of the rights of parties.
There is a suggestion in the majority opinion as to the right of the appellant to appeal from any judgment which may be rendered in the contempt proceedings. If by what is said it is intended to intimate that by reason of the fact that an appeal will lie from the judgment in such contempt proceedings, prohibition against the superior court should not be allowed even though it was proceeding without jurisdiction, I cannot agree to such intimation. To hold that a de