
    JOHN H. WILSON, ON BEHALF OF HIMSELF AND ALL OTHER TAXPAYERS OF THE CITY AND COUNTY OF HONOLULU AND OF THE TERRITORY OF HAWAII, AND JOHN H. WILSON, AS MAYOR OF THE CITY AND COUNTY OF HONOLULU, A MUNICIPAL CORPORATION OF THE TERRITORY OF HAWAII v. INGRAM M. STAINBACK, GOVERNOR OF THE TERRITORY OF HAWAII, ROBERT M. BELT, SUPERINTENDENT OF PUBLIC WORKS AND TERRITORIAL HIGHWAY ENGINEER, TERRITORY OF HAWAII, AND WALTER D. ACKERMAN, JR., ATTORNEY GENERAL OF THE TERRITORY OF HAWAII.
    No. 2820.
    Argued September 15, 1950.
    Decided September 18, 1950.
    Le Baron and Towse, JJ., and Circuit Judge Moore Temporarily Filling Vacancy Caused by Retirement oe Kemp, C. J.
   Per Curiam.

The appellants as officers acting in their official capacities on behalf of the Territory appealed without filing any bond for costs from a decree entered below granting injunctive relief and taxing costs in the sum of forty-five dollars against such officers. The appellee moves to dismiss the appeal on the sole ground that section 9762 of Revised Laws of Hawaii 1945 is unconstitutional to the extent that it expressly exempts “any officer, acting in his official capacity on behalf of the Territory” from filing “any bond * * * for costs * * * on appeal.” But in arguing the motion, he concedes the constitutionality thereof to that extent. Nevertheless, he attempts to stay in court upon the contention that the appellants are not entitled to be exempted from filing bond for costs on appeal because they have not paid the costs taxed below. He posits this contention on the erroneous assumption that a decree on appeal constitutes a “final judgment” within the meaning of section 9762 so as to require the Territory against which the lower court entered the decree to return “all deposits for costs made by the prevailing party” below before perfecting its appeal. The contention and assumption are without merit and no useful purpose would he served by further consideration of them.

A. K. Trask for the motion.

M. Sapienza contra.

Motion denied nunc pro tunc as of September 15, 1950, the date of this court’s oral denial of the motion at the close of argument.  