
    STATE, Plaintiff, v. CARLSON et al, Defendants.
    (157 N. W. 657.)
    (File No. 3999.
    Opinion filed May 1, 1916.)
    1. Appeals — Appeal from Judgment Enjoining Nuisance and Prohibiting Licensed Liquor Sales — Supersedeas Bond, Application to Supreme Court for — Supersedeas Statute., Application of to Prohibitive Injunction.
    Code Civ. Proc., Sec. 467, provides that when the trial court shall neglect or refuse to. mate an order staying proceedings upon an appeal, the Supreme .Court shall make such order; Sec. 451 provides that, if the judgment appealed from direct ¡the abatement, or restraint of the continuance 'of a nuisance, the execution of the judgment shall not be stayed by the appeal unless an undertaking be given conditioned that appellant will ■pay all damages the opposite party may sustain by continuance of the unisance. Held, upon application by defendants for an order fixing ;the amount .of an undertaking on appeal to stay the enforcement of a judgment of the -trial court, in a civil action, declaring certain premises and the business of selling intoxicating liquors at retail therein to be a .public and common nuisance, and directing the sheriff to abate such nuisance by removing the liquors, unless defendants should remove them, and restraining defendants from permitting ¡any liquors on the premises, and from selling or offering for sale any such liquors thereon, and -perpetually enjoining and -prohibiting defendants from continuing or engaging in any business requiring payment of a liquor license, that section 451 does not apply to prohibitive injunctions, and that the undertaking applied for, while it would in effect stay the mandatory provisions of the judgment, would not affect the prohibitive provisions therein.
    Gates, J., and Smith, J., dissenting.
    2. Statutes — Construction of — -Former Law Modified, by Compilers— Construction in Absence of Ambiguity.
    Where there is no ambiguity in a section of the present statute as it now reads, its construction cannot be controlled by the wording of such section as it read before the unauthorized change therein by the compilers of the Compiled Laws had been made. So held,-in construing Code Civ. Proe., Sec. 451, wherein it reads: “If the judgment appealed from direct :the abatement, or restraint of the continuance of a nuisance,” etc., sec. 5225, -Comp. Laws 1887, before being so changed, containing the phrase “direct the abatement or the restraint of the continuance of a nuisance.”
    Original proceeding in Supreme Court by way of application, under Sec. 457, Code C'iv. P'roc., for an- order fixing the amount of an undertaking on an uncompleted appeal' to the Supreme Court, which, shall operate -as a supersedeas, in a civil action, by the State of South- Dakota against Chris Carlson and another, wherein a judgment was entered by the trial court against -defendants-, declaring certain premises and the business of selling intoxicating liquors at retail therein to be a public nuisance, -directing the sheriff to’ abate it, and- restraining the defendants from allowing any liquors upon -the premises, or from Selling any liquor therefrom’, -and perpetually enjoining and pro'-hibting them -from’ 'continuing -any- business requiring payment of a liquor -license; said defendants having applied for said' order. Amount of stay undertaking fixed at the sum of $500 with sureties, and restraining order issued by Supreme Court continued in force for ten -days.
    
      R. A. Dunham, and G. R. Sherwood, for plaintiff.
    
      Planten & Hcunten, and Perrett P. Gault, for defendants.
    Plaintiff cited: Code Civ. P-roe., Secs. 451, 453; Sec. 1410, page 1289; 3 Corpus Juris, and- cases cited; Section- 2361, Civil Code.
    Plaintiff submitted That: A stay of proceedings granted on supercedteas bond does not, and should not interfere with the injunctional- order contained in the judgment; and cited: Sixth Ave. R. R. Co., v. Gilbert E.. R. R. Co. 71 N. Y. 430; State ex rel A. S. Gibson et al v. Superior Court, Vbl. 4, Am. and Eng. Ann. Ca-ses, 229; Lindsay v. Dist. Court of Clayton Co., 39 N. W. 817.
    Defendant cited: Code- Civ. Proe. Secs. 457, 451, 446, 449, 4S°> 452> 459 5 3 Corpus Juris, page 1286, 1397, 1410; In re Taber, 13 iS. D. 62; 22 Cyc. 970.
   WHITING, J.

This is an 'original proceeding in 'this court. It is an application, under the provisions of section. 457, C. C. P., for an order fixing the amount of an undertaking on appeal for the purpose of staying the enforcement of the judgment of a trial court. The application i® based upon a showing that the trial court has refused and neglected to fix the amount 'of a stay undertaking upon an appeal to this court which the defendants desire to take. In the case of the above title, a civil action pending in the circuit court of the Third judicial circuit within and for Clark county, a judgment was entered on March 14, 1916, declaring certain premises in the town of Vienna and the business of selling intoxicating liquors at 'retail therein to be' a public and common nuisance; directing the sheriff to abate such nuisance by removing from: such premises all spirituous, malt, brewed, fermented, or vinous liquors, unless the defendants caused the same ito be done within three days; restraining the defendants, their agents, servants1, etc., from, permitting or allowing in or upon said premises any such- liquors, and from selling or offering for sale therein any of such liquors; enjoining and prohibiting defendants- perpetually from continuing or engaging in any business requiring the payment of a license under the provisions of article 6, .c. 27, Pol. Code, as amended; and for ■costs.

It will he noticed that some of -the provisions of such judgment are mandatory or affirmative in nature, while others are prohibitive or negative. The applicants contend that they have a right to give a bond on appeal, and that the effect of such bond will he, not only to stay the mandatory provisions of such judgment, but also to. suspend the prohibitory provisions thereof. It must be conceded that, under the decisions of practically every court in our land, the prohibitive provisions of an injunotional judgment cannot be suspended by an appeal, at least without some order to that effect. State v. Superior Court, 39 Wash. 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862; 4 Ann. Cas. 229, and authorities cited in notes 4 Ann. Cas. 231. In Lindsay v. Dist. Court, 75 Iowa, 509, 39 N. W. 817, a case on all fours with this one so far as the -nature of the judgment is concerned, the -court said:

“It will 'be observed -that the validity or -effect of the judg-.meat is in no manner affected by tíre -appeal. It remains in fiill force, but process thereon is suspended until -the a-ppeal is determined. Tlte judgment cannot be enforced) by process, but a different rule prevails if the judgment is self-enforcing. Jayne v. Dronbaugh, 63 Iowa, 711, 17 N. W. 433. In the case at bar the nuisance cannot be abated. until the appeal is determined. The effect of the supersedeas is to preserve the existing state of the matter, whatever it,may be. It amounts to a suspension; and the relief obtained thereby is of a negative, and not of an affirmative, character. The injunction remains in full force, and the appeal and1 supersedeas dio not affirm or give the party enjoined the right to violate it. If so, then, where a person is enjoined from committing waste on- real estate, he may, pending an appeal, do- irreparable injury to- the estate; as when he is enjoined from removing heirlooms, or destroying them, which possibly have -little- or no money value. So, too, when one is enjoined from polluting -a stream of water, thereby endangering the health of large numbers of people. In such, -cases the terms, conditions of, and liability on the -supersedeas bond do not afford any adequate relief, or indemnhy, and1 certainly this is so- in the case at bar.”

But -the applicants contend that, owing to the peculiar wording of section 451, C. C. P., the rule isi different -in' this state. Such- section reads :

“If the judgment appealed from direct the abatement or restraint of the -continuance of a nuisance, either -public or private, the execution of the judgment sh-a-ll not be staj^ed 'by the appeal unless an undertaking be -entered into -on the part of -the- appellant, by at least two- sureties', in -such sum as the court, or presiding judge thereof, shall -direct, to- the effect that the appellant- will p-ay all damages which the opposite party may sustain by the -continuance -of such nuisance.”

We -can find nothing in -such, section applying to prohibitive injunctions; in so far as a judgment may “direct'the abatement -®-r restraint of the continuance of -a nuisance” it is affirmative • or • -mandatory, and- is not self-executing. But it has been suggested- that this- section should be construed exactly as section 12, c. 20, Laws 1887, would have ¡been construed Tracing the history of such former section, there is disclosed an unauthorized change by the compiler's of .the 1887 Compiled Laws. See C. L. § 522.5. It is suggested that it was. the legislative intent that our present section 'should be construed 'exactly as that section would have been. We can see no merit in this contention. If there was any ambiguity in the .present section, we might be justified in examining its predecessors to the end that we might 'determine the intention of those enacting such present section. But there is no ambiguity in the section at it now reads, and its construction cannot 'be controlled by the - wording' of such former sections.

With the prohibitive -provisions of this injunction in full force, little, if any, damage can result-from a stay of the other provisions thereof. The amount of the stay undertaking upon appeal is therefore fixed at the sum of $500, w-ith sureties (or -a surety -company) to be approved by the judge of the trial court. Tire restraining order heretofore issued 'by this court is continued in force for a -period of ten days to allow time for applicants to- prepare, have- -approved, -serve, and file s-u-ch stay undertaking upon appeal.

GATES, J.

(.dissenting’). Our statute upon appeals from the circuit court to the Supreme Court -was taken from- Wisconsin in 1887. So far as I have been a-ble- to ascertain, the only other states that have a section of statute corresponding with, section 451, C. C. P., are Wisconsin and North Dakota. That section reads as. follows:

“If the- judgment appealed- from direct the abatement, or restraint of the continuance' of a nuisance, either public' or private, the execution of the judgment 'shall.not be stayed -by the appeal unless an undertaking -be' entered into on the part of the appellant, by at least two sureties, in such sum -as the court, or presiding judge thereof, shall -direct, to the 'effect that the appellant will .pay all 'damages which tire opposite party may sustain by the continuance' of such nuisance.”

So far as the language of that section concerns the fixing of the amount of the undertaking, it is similar to sections 447, 449, 4507 and 452,"which-sections, together with the-one under'considerátion, ‘correspond with sections 3054, 3056, -3057-, 3058, and 3059, Wisconsin Statutes 1898, and with sections 7826, 7828, 7829, 7830, and 7831; North Dakota Comp: L. 1913. Under the Wisconsin statute (section 3059) 'the Supreme Court of that state held in Northwestern Mutual Life Insurance Co. v. Park Hotel Co., 37 Wis. 125, that the stay was: a matter of right, and that mandamus would 'lie to compel the trial court ,to fix the amount of an. undertaking. In City of Janesville v. Janesville Water Co., 89 Wis. 159, 61 N. W. 770, the court said:

“Appeals from orders and judgments, in the .cases allowed by law, are a matter of right; and within the limitation that the appeal is taken and prosecuted in good faith, and that the party asking It gives the reasonable security required for that purpose, a stay of proceedings during the pendency of an appeal is quite of course, and really a matter of right, without which an appeal allowed by law would often prove fruitless and the appellate jurisdiction of,the court he found inadequate to the end's of justice and the proper protection of the rights of parties during the pendency of the appeal.”

This language was criticized in Hill v. Gates Co., 112 Wis. 482, 88 N. W. 463, as being too sweeping, and the court therein held that it should he limited to facts similar to those before the court at the time it was uttered, and accordingly in the latter case it wias held that under section 3060, Wisconsin Statutes 1898 (corresponding with our section 453, C. C. P.), the right to stay was discretionary.

In Harris v. Snyder, 113 Wis. 451, 89 N. W. 660, there was a question as to whether or not -the amount of the undertaking had been fixed by the trial court. If was therein stated:

“It is enough to say that, if the court was satisfied that -the amount was so fixed, as required by statute, and the notice of appeal and undertaking were served -and filed before the.execution was issued, then, under the authorities cited, the notice of appeal and undertaking operated as a supersedeas, without any further order by the court..”

In Green v. Hebbard, 95 Cal. 39, 30 Pac. 202, and Gutierrez v. Hebbard, 104 Cal. 103, 37 Pac. 749, writs of mandamus were issued compelling the trial judge to fix the amount of stay undertakings on appeal under the provisions of section 945, C. C. P. Cal., similar to our. section 449, C. C. P. In Windsor Pottery Works v. Superior Court, 13 Cal. App. 360, 109 Pac. 843, construing section 943, C. C. P. Cal., relating to an appeal from a judgment or order appointing a receiver, in which the language used is similar to that .in ou-r 'section 451, C. C. P., the court said:

“It is the duty of the judge under the said1 section to fix the amount of the undertaking- in order to stay the proceedings -pending an appeal, and in case of his refusal the writ of mandate will lie to compel such action.”

In State ex rel. Ger. Sav. Bk. v. Fawcett, 58 Neb. 371, 78 N. W. 636, under a statute similar in language to our -section 449, C. C. P., it was held that a stay on appeal was a matter of right. In Dady v. O’Rourke, 65 App. Div. 465, 72 N. Y. Supp. 827, in construing a statute similar to our section 447, C. C. P. the court said:

“These conditions are to some .extent dependent upon the exercise of judicial -discretion. Thus the e-nm- in which a written undertaking is to- -be given to stay- the execution of a judgment directing the -delivery of personal property or the recovery of a chattel is to be fixed by the -court from- which .the appeal is taken, ¡or by one of the judges of that tribunal. When this sum has been fixed, however, and -the appellant gives a written undertaking in that amount, the proceedings are thereby stayed without any further judicial -action; and we think that -the -appellant in su-ch a case has- -th-e right, upon an application for -that purpose, to have some amount fixed ais the sum- to be specified in the undertaking. We are of the opinion that the judge to whom -such an application is -made cannot -prevent him from obtaining a stay by refusing to fix any a-m-ount at all.”

But it is urged- by the -attorneys for th-e state (and this view is adopted in the majority opinion) that, while it might be within the rights of defendants to have a stay as to- -the enforcement of that part of the judgment commanding the removal of th-e liquors from the premises — i. e., affirmative acts -of abatement — it is not within their right to have a stay a-s to -the enforcement of th-e in-junctional features of the judgment. The following -cases are cited: Sixth Ave. R. Co. v. Gilbert, etc.. R. Co., 71 N. Y. 430; State ex rel. Gibson v. Superior Court, 39 Wash, 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862, 4 Ann. Cas. 229; Lindsay v. District Court, 75 Iowa, 509, 39 N. W. 817.

In a note on page 1253 of 29 Cyc. it is stated:

"Supersedeas. — In- a suit for the abatement of a nuisance, an a-ppeal to- the Supreme Court will not, without further order, operate as a supersedeas, although a bond1 has been given under the Pennsylvania acts of March 7, 1845, and February 11, 1857, but the court may order the appeal to operate as a supersedeas on bond being given. Barker v. Hartman Steel Co., 23 Wkly. Notes Cas. (Pa.) 109.”

Not having access to- either the statutes or the opinion referred to, I am unabl-e to determine tire applicability of the note to the case in hand. The New York case is based1 on the language of •the then section 1351, C. C. P., which read:

‘'But, except where it -is otherwise specially prescribed by law, the appeal does not stay the execution -of the judgment or order appealed from, unless the ooiurt in or from which the appeal is taken, or a judge thereof, makes an order directing such a stay.”

The Washington decision discusses .the -distinction between mandatory and prohibitive injunctions, but the -decision does not rest upon any provision of the Washington statute. The Iowa decision (quoted from- in the majority opinion) wa's- based on the then section 3186 of -the Iowa Code, which is dissimilar in effect to our section- 451, C. C. P. These decisions, in, my -opinion, have no -application to a statute which expressly grants- a stay not merely from that part of the judgment which abates a nuisance, but 'also -from that -part - of the judgment which relates t-o a “restraint of the continuance of a nuisance.” Section- 451, C. C. P., first appeared, a-s has been [pointed out in the majority opinion, as section 12 of chapter 20 of the Laws- of 1887. It was there verbatim with section 3058, Wis. St., except that the word “of” was inserted after the verb 'Test-rain.” Manifestly ¡the insertion of the word- “of” was a clerical or typographical -error.- Under the section as it then was a judgment might -h-ave been twofold'. It might have -directed the abatement of a nuisance, an affirmative .act, and it might have restrained the continuance of the nuisance, a prohibitive act. From either act, -affirmative or prohibitive, or both, an appeal would lie, and it seem-s clear to me that under -that section as it then was a stay of the enforcement of the judgment was a matter- of right, and--that the -only discretion the trial court had- was in regard to the'amount at which the stay undersbaking should be fixed1.

Assuming that the Legislature of 1903 intended* to- adopt in the-Revised Code of Civil Procedure the unauthorized act of' the compilers of ¡the Compiled Laws of 1887 in changing the verb "restrain” to the noun “-restraint,” what real -difference is -there between proper -interpretation of .the -statute then -and now? At present the judgment may -direct the abatement of the nuisance, or it may direct the restraint of the continuance of -the nuisance. Can there be any -distinction in effect between a judgment which restrains the continuance -of a nuisance an-d one which directs the restraint of its continuance? It seems to me there -is 'merely a distinction without a difference. It is the old case of tweedledum and tweedkdee. It must be conceded that a judgment which restrain® the continuance of a nuisance is self-executing. W'hy is not a judgment that directs the restraint of the continuance of a nuisance also self-executing"? If it is not, wh-at steps are necessary to make it 'effective?

In '-the face -of our statute I .-think we have no- right to resort, for authority, -to common-law -decisions which recognize (and properly so) the distinction in matters -of stay between mandatory and prohibitive injunctions. When the Legislature ha® -spoken there is- no ground for a judicial distinction contrary to- the express w-ord-s of -the statute. I think it is -the plain duty of this court to fix the amount of an undertaking whereby the whole effect of the judgment will be stayed upon appeal.

S-MITH, J., -concurs in ¡the views of Justice GATES.  