
    [No. 4763.
    Decided August 10, 1903.]
    The State of Washington on the Relation of John Cawley et al. v. Town of Bremerton et al.
    
    SUPERSEDEAS-ISSUANCE BY SUPREME COURT IÍT AID OF APPELLATE JURISDICTION — FUTILITY OÍ APPEAL-EFFECT.
    A writ of supersedeas Will not isshe from the Supreme court to stay a judgment of the superior court pending appeal, where it appears that the controversy will have ceased at the time of the hearing of the appeal iü regular course, since it id the intent of art. 4, § 4, of the constitution that writs in aid of the court’s appellate jurisdiction shall he issued only in cases wHen necessary and proper to the complete exercise of such jurisdiction and when the appeal would afford inadequate remedy.
    
      Original Application for Supersedeas.
    
    
      George C. Israel and R. H. Lindsay, for petitioners.
    
      Greene & Griffiths, for respondents.
   The opinion of the court was delivered by

Mount, J.

Prior to June 6, 1903, the town of Bremerton, a municipal corporation of the fourth class, had issued to relators a license to retail spirituous and malt liquors within the limits of said town at a place therein designated. Oil that day the relators were engaged in conducting a saloon under their license for the retail of liquors, when the mayor issued and caused to he served upon them a notice to appear at a special meeting of the common council of said town, to he held three hours after the notice was served, and show cause why their license should not he revoked, After the service of this notice, and on the same day, the mayor and common council met in special session and charged relators with violating the terms of the ordinance under which the license had been issued, and, without affording relators an opportunity to he heard, and without any proof of the charges made, the mayor and council passed an ordinance revoking and cancelling the license. Before the mayor and council could carry this ordinance into effect, or cancel or annul the license, relators, upon application to tire superior court for Kitsap county, obtained from said court a writ of certiorari commanding the mayor and council to certify their proceedings to the said court for review, and to appear before said court on July 2á, 1003, and show cause why the ordinance should not fee set aside and annulled ; and an order wag also issued commanding the respondents in the meantime to desist from further proceedings until the further order of the court. Relators thereupon continued their business until the 25th day of duly, 1003, at which time the said writ oí review came on for hearing before the court upon the return of relators to the writ and upon a motion of respondents to quash the writ upon the ground that the court bad no jurisdiction of the subject matter of the action, for the reason that the acts complained of were legislative, and'not judicial, in their character, The lower court so held, and by a final order quashed the writ and dismissed the proceedings. Relators thereupon appealed to this court from the said order. The license of relators will expire by its terms on October 1, 1903. The appeal taken from the final order of the court quashing the writ cannot be heard in this court before that time. Tor these reasons, and the further one that the lower court is not authorized to supersede the judgment in cases of this kind, relators have applied to this court for an order superseding the judgment of the lower court, and also superseding the operation of the ordinance, so that relators may continue to conduct their saloon under their license until the appeal may be heard in this court.

In the case of State ex rel. Barnard v. Board of Education, 19 Wash. 8 (52 Pac. 317, 40 L. R. A. 317, 67 Am. St. Rep. 706), it was said that “this court, in the exercise of its discretion, by virtue of its inherent powers as an appellate tribunal, can issue an order of supersedeas to preserve the status quo of the parties, pending the determination of the appeal upon its merits.” That was a case where the relator was accused of malfeasance in office, and the charges were being tried by a board one member of which was disqualified by reason of enmity and declarations which he had made. The writ was sued out to prevent this disqualified member from sitting as a member of the board. The lower court quashed the writ, and an appeal was taken therefrom, and this court issued a supersedeas “for the purpose of making the appeal effective and to insure the complete exercise of this court over that appeal.” ’ '

The case of State ex rel. Bringgold v. Burns, 21 Wash. 227 (57 Pac. 804), was a Case where relator was being tried before the board of police' upon an accusation of inefficiency and misbehavior. While' the' trial' was ‘ in progress, the superior' court of Spokane' county íssiied a temporary writ prohibiting the board of police from proeeeding further with the trial. Upon a hearing the superior court quashed the writ, and the relator appealed to this court. The appellant thereupon applied to this court for a writ to supersede the judgment and continue the writ of prohibition against the board of police, staying further action upon the charges before that board pending the appeal. Upon that application this court, after distinguishing the case of State ex rel. Barnard v. Board of Education, said:

“The court will not grant this writ as of course. Before it will do so, it will look far enough into the merits of the application to ascertain whether some substantial right of the complaining party has been invaded, which this court will probably remedy by the determination of the appeal.”

The court then determined the merits by holding that the board of police, had jurisdiction to try the relator upon the charges and denied the writ. Both of these cases are similar to the case at bar. In one the supersedeas was granted; in the other it was denied. They both lay down the rule that it is within the discretion of this court to issue the writ. But in this case we think the discretion ought not to be exercised. The evident intention of § 4, art. 4, of the constitution, was that writs of this character should he issued only when necessary and proper to the complete exercise of the appellate and revisory jurisdiction of this court where the- appeal is an adequate remedy. It was certainly not intended .that the writ should issue when it would be oppressive upon either party, or where its issuance is a virtual determination of the questions raised on the appeal. It is true the relators have appealed to this court; the order appealed from is one from which an appeal is authorized. But these facts are not sufficient to warrant this court, not only in superseding the judgment of the lower court, hut also in reaching beyond that and annulling the ordinance completely so far as it affects the relators. This appeal can never he heard upon its merits. Relators’ license will expire by its terms on October 1, 1903, The next regular session of this court will not begin until after that time, "When the case is called for hearing on the regular docket the controversy will have ceased, and under the uniform holdings of this court will he dismissed. If a supersedeas is issued, the relators will he permitted to conduct their business, in violation of the ordinance and of the judgment of the lower court, until the expiration of the term of their license, and thereupon they will have no further interest in the appeal. If the supersedeas is not issued they cannot conduct their business between this time and October 1, 1903, when their right to conduct it will expire. In either event, after the expiration of the license upon which all their rights are based, there can he no live question for onr consideration. The appeal, therefore, is inadequate, even if relators haye the right to take it, If the appeal were an adequate remedy, and a supersedeas as prayed would insure a hearing upon the merits, we should feel inclined to grant it; hut a supersedeas which permits an ordinance or a statute to he avoided, and which gives an appellant all the advantages of a reversal without a hearing upon the case, is dangerous, and should not be granted when there is any other remedy.

For these reasons the application is denied.

Fullerton, C, J., and Hadley, Anders and Dunbar, JJ., concur.  