
    [No. 36486.
    En Banc.
    October 2, 1962.]
    Robert R. Beezer, Appellant, v. The City of Seattle et al., Respondents, Public Utility District No. 1 of Pend Oreille County, Intervenor-Appellant.
      
    
    
      Alfred J. Schweppe and Frederic C. Tausend, for appellant.
    
      Clarence C. Dill and Lloyd W. Ek, for intervenor-appel-lant.
    
      A. C. Van Soelen, A. L. Newbould, Richard S. White, and Richard W. Bartke, for respondents.
    
      
      Reported in 375 P. (2d) 256.
    
   Per Curiam.

This matter comes before us on a motion to dismiss the appeal in this case.

The appeal was argued before this court Thursday, June 14, 1962, and appears in our Advance Sheets of August 3, 1962 (ante p. 239, 373 P. (2d) 796).

The city of Seattle filed a timely petition for rehearing, which stayed the going down of the remittitur until we disposed of the petition. While the petition was under consideration, the city of Seattle moved to dismiss the appeal on the basis of the opinion of the United States Court of Appeals for the District of Columbia Circuit, in cause No. 16,653, Public Util. Dist. No. 1 of Pend Oreille Cy. v. Federal Power Comm., filed August 30, 1962, 308 F. (2d) 318, affirming an order of the commission.

It is the contention of the city that this decision of the circuit court is res judicata of the issues raised on this appeal and renders the appeal moot.

We are advised that Public Utility District No. 1 of Pend Oreille County will petition the Supreme Court of the United States to review, by certiorari, the circuit court’s affirmance of the order of the Federal Power Commission; and, pending such review, we do not accept the conclusions of the circuit court as res judicata of the issues heretofore determined by this court in its opinion of August 3, 1962. Nor do the conclusions of the circuit court render moot the issues presented to us for determination, unless, and until, the judgment of the circuit court becomes final and binding on Public Utility District No. 1 of Pend Oreille County, Washington.

The motion to dismiss the appeal is denied.

Donworth, J.

(dissenting) — The decision of the United States Court of Appeals for the District of Columbia, Public Util. Dist. No. 1 of Pend Oreille Cy. v. Federal Power Comm., filed August 30, 1962, 308 F. (2d) 318, held that there was no need to decide the only question involved in the present case because the city of Seattle had authority under § 21 of the Federal Power Act (16 U. S. C. § 814) to condemn the property of the public utility district.

The result of the above majority opinion is to remand the present case to the trial court for the trial of an issue of fact which is now immaterial. It could become material only if the United States Supreme Court should (a) grant, the public utility district’s proposed petition for certiorari and (b) subsequently reverse the decision of the Court of Appeals. None of the parties are seeking a stay of proceedings in this case until the United States Supreme Court disposes of that case.

For the reasons stated in the dissenting opinions in the instant case (Beezer v. Seattle, ante p. 239, 373 P. (2d) 796), the remand of this case at this time is a useless act and will impose on the litigants unnecessary labor and expense.

Assuming that the pending petition for rehearing in this court will be denied, I would grant the city’s motion to dismiss the appeal.

Finley, C. J., and Hamilton, J., concur with Donworth, J.  